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Statutory demand for payment, Debt for liquidated sum payable immediately


emmliss
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Thank you mr.ton, that link was very useful.:D. Although I still dont understand the bit about how it is served, post or server? the national debt line says a DCA has to prove that they tried to serve a stat demand, before just sending it in the post? so leading back to why get it set aside if they just send at the first attempt 2nd class post??? guess its just me being thick, I just dont understand, Tks anyway.

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emmliss, I am IN NO WAY, advising you to say that you never received the SD, because that would be untruthful.

 

Short answer:

I am simply advising against making an application to set it aside at this time because you would be unable to swear an affidavit which disclosed the criteria by which a court could strike out the SD. In short, I am advising in favour of doing nothing (now you have sent off your s77 request).

 

Long answer:

 

Point 1

Earlier I referred to rules 6.5(4)(a)-(d). These are the rules which control how the court should approach the question of whether to strike out a SD or not. So that you follow, I am setting them out below:

 

The court may grant the application if—

(a) the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt or debts specified in the statutory demand; or

(b) the debt is disputed on grounds which appear to the court to be substantial; or

© it appears that the creditor holds some security in respect of the debt claimed by the demand, and either Rule 6.1(5) is not complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.

 

In other words, your supporting affidavit must show the creditor probably owes money to you to at least the value of the claim against you or, you probably don't owe the money claimed by the creditor. You can ignore © on the basis this relates to a credit card and (d) is reserved for technical, legal situations, for example the debt has been acquired by assignment but there has been no valid notice of assignment given to the debtor to name but one.

 

I considered whether the method of service might qualify under (d) owing to a consideration of rule 6.3, but ruled that out. Another but which hitherto I had not posted, was whether a failure to indicate the appropriate court to apply to set aside, was an 'other ground', which I also reject on the basis that since the application to set aside will have found its way to the correct court before it is considered, there will have been no prejudice. You can not rely on the creditor's failure to comply with your s77 request because time for them to do that has not yet run out.

 

Since you haven't told us the creditor owes you a fortune (which I imagine you would have done had this been the case), and since at this moment in time you are unable to say that you have never entered into an agreement with the creditor or otherwise advance substantial grounds showing why the debt is disupted, you can not satisfy either (a) or (b). I imagine that the creditor does not hold any property of yours as security for the debt and to my way of thinking there are no technical or other features about the matter, the truth of which you could positively swear in the supporting affidavit. If so, then you can't satisfy © and (d) either.

There are no other grounds upon which a SD might be set aside.

 

Point 2

Besides all the foregoing, the creditor at present would be unable to verify on oath when the SD came into your hands. Being unable to do this prevents the creditor from fulfiling the requirements of rule 6.11.

 

rule 6.11 says:

(1) Where under section 268 the petition must have been preceded by a statutory demand, there must be filed in court, with the petition, an affidavit or affidavits proving service of the demand.

(2) Every affidavit must have exhibited to it a copy of the demand as served.

(3) Subject to the next paragraph, if the demand has been served personally on the debtor, the affidavit must be made by the person who effected that service.

(4) If service of the demand (however effected) has been acknowledged in writing either by the debtor himself, or by some person stating himself in the acknowledgement to be authorised to accept service on the debtor's behalf, the affidavit must be made either by the creditor or by a person acting on his behalf, and the acknowledgement of service must be exhibited to the affidavit.

(5) If neither paragraph (3) nor paragraph (4) applies, the affidavit or affidavits must be made by a person or persons having direct personal knowledge of the means adopted for serving the statutory demand, and must—

(a) give particulars of the steps which have been taken with a view to serving the demand personally, and

(b) state the means whereby (those steps having been ineffective) it was sought to bring the demand to the debtor's attention, and

© specify a date by which, to the best of the knowledge, information and belief of the person making the affidavit, the demand will have come to the debtor's attention.

(6) The steps of which particulars are given for the purposes of paragraph (5)(a) must be such as would have sufficed to justify an order for substituted service of a petition.

(7) If the affidavit specifies a date for the purposes of compliance with paragraph (5)©, then unless the court otherwise orders, that date is deemed for the purposes of the Rules to have been the date on which the statutory demand was served on the debtor.

(8) Where the creditor has taken advantage of Rule 6.3(3) (newspaper advertisement), the affidavit must be made either by the creditor himself or by a person having direct personal knowledge of the circumstances; and there must be specified in the affidavit—

(a) the means of the creditor's knowledge or (as the case may be) belief required for the purposes of that Rule, and

(b) the date or dates on which, and the newspaper in which, the statutory demand was advertised under that Rule; and there shall be exhibited to the affidavit a copy of any advertisement of the statutory demand.

(9) The court may decline to file the petition if not satisfied that the creditor has discharged the obligation imposed on him by Rule 6.3(2).

 

You will see that included in the strict requirements of rule 6.11, the court still has power to decline to file the petition if not satisfied the creditor has discharged the obligation under 6.3(2).

 

We know service was by 2nd class post. Service that way doesn't discharge the obligation. A petition is not going to get past the filing clerk, UNLESS service can be established by some other way, ie (a) because you wrote to them acknowledging service or (b) you said so in an application to set the SD aside.

 

Point3

No one who has posted to this thread has ever said there is a real risk the creditor will proceed to even attempt to present a petition.

 

Conclusion

Relying on Point 1, you have no grounds at present to persuade the court to accept your SD as showing cause whereby the SD might be set aside. It would very likely be dismissed without a hearing.

 

Relying on Point 2, by applying to set the SD aside you run the risk of providing the creditor with the means to prove service. By not applying, the creditor is faced with the obstacle that is rule 6.11.

 

Relying on Point 3, the creditor is probably not going to petition anyway.

Hence and I repeat for the umpteenth time, I do not recommend you apply to the court to set aside the SD. I advise you do nothing apart from switch off your computer and go and do something more interesting.

 

I'm going to do the same. I have no desire to rub shoulders with people who think that advising against going to law is sinister. Advising against going to law can save a person a heap of money. People should be afraid of clowns who encourage others to litigate but whoare unable to put together a cogent argument saying why.

 

I would have prefered not to boast, but to answer bear39's question, yep you're right. I've practiced civil litigation in English law offices every day without interuption since 1978. I came to this site to offer some assistance for free. On reflection, I think I'll stick to charging for it. People appreciate you so much more when they have to write a fat cheque out.

 

X20

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I do not recommend you apply to the court to set aside the SD. I advise you do nothing apart from switch off your computer and go and do something more interesting.

I have no desire to rub shoulders with people who think that advising against going to law is sinister. Advising against going to law can save a person a heap of money. People should be afraid of clowns who encourage others to litigate but whoare unable to put together a cogent argument saying why.

I would have prefered not to boast, but to answer bear39's question, yep you're right. I've practiced civil litigation in English law offices every day without interuption since 1978. I came to this site to offer some assistance for free. On reflection, I think I'll stick to charging for it. People appreciate you so much more when they have to write a fat cheque out.

 

You mean save the DCA industry a whole lot of money? :rolleyes:

If you have no desire to rub shoulders with certain members on here then i suggest that you go find a forum that is more on your wavelength as this one obviously is not. :)

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Wow X20 that post was great, for the first time I am starting to make head and tail of all this. Pls dont leave there are lots of us on here that would be really grateful of your help and advice, as we do of all help and advice ty.:D

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I would have prefered not to boast, but to answer bear39's question, yep you're right. I've practiced civil litigation in English law offices every day without interuption since 1978. I came to this site to offer some assistance for free. On reflection, I think I'll stick to charging for it. People appreciate you so much more when they have to write a fat cheque out.

 

X20

 

I suppose we should be grateful for someone apparently so well versed in civil litigation to give such wordy advice pro bono.

 

Its amazing that someone in a busy law practice can spend all day on this forum. Not many solicitors I know could do that.

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Oh my, I must say I am confussed now about why all this hostility??. surely we are all here for the same thing, to help or be helped! surely we should be grateful of all the advice/help we can get, I know for one I am and lets face it X20 seems to really know his stuff and he even got a thicko like me to start understanding the law. Ok, off soap box now.:p

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Oh my, I must say I am confussed now about why all this hostility??. surely we are all here for the same thing, to help or be helped! surely we should be grateful of all the advice/help we can get, I know for one I am and lets face it X20 seems to really know his stuff and he even got a thicko like me to start understanding the law. Ok, off soap box now.:p

 

Hi, the reasons in part for this is, that we often have Debt collection agency staff frequenting the forum

 

secondly, with a forum like this, you have no idea who is sat behind the user name.

 

Is X20 a lawyer? we only have his word for that, now i happen to think that he is connected with the legal services ;)and i say no more on that. i work with a Solicitors myself but likewise you only have my word for that;)

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Oh my, I must say I am confussed now about why all this hostility??. surely we are all here for the same thing, to help or be helped! surely we should be grateful of all the advice/help we can get, I know for one I am and lets face it X20 seems to really know his stuff and he even got a thicko like me to start understanding the law. Ok, off soap box now.:p

 

8-)

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Wow, 30 years :eek:

 

In consumer law?

"To love unconditionally is the greatest gift, laughter is a close second" .To give your time to help others after being helped here is the best way to show your appreciation to your fellow CAG members.

 

Please note that this advice is given informally, without liability and without prejudice. Seek the advice of an insured qualified professional if you have any doubts. All my knowledge has been gained here, for which I'm very grateful. I'm a Journalist, not a law professional.

 

If you do PM, make sure to include a link to your thread as I don't give out advice in private ;)

BB 13 - DCAs/banks and solicitors 0.

 

I get a fresh start to get on with learning to live with severe disabilities when they could have had something if they'd been understanding...

 

<--- If you feel I've helped, please twinkle my star :)

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When I first signed up to this forum my entire raison d'etre was to help those in a pickle. I had not figured that there would be people with agendas who would hijack a thread and who would be hostile towards me. And even lately I had not figured, after being coaxed into revealing my background somewhat against my better judgment, that I ought to then qualify my statement of experience by deleting the weekends, the holidays and the days off for illness.

 

There is something quite depressing where, after spending hours of time in preparing an opinion running to 1400+ words, you're met by a bloke with an attitude just 8 minutes later, who claims you're a front for a debt collection agency. And by another who has the affrontery to suggest a year in a DCA threat centre would seem like my thirty. I've operated against DCAs. They're easy. They couldn't quote chuncks from the Insolvency Rules if they had the book in front of them. To be branded as in cahoots with all of those guys is deeply, deeply offensive.

 

It is for these reasons that I have called it a day. With a bit of luck I will be fit and well by Monday and able to return to a place packed with proper lawyers. There is I suppose one minor benefit from my short lived experience here in that I'll be able to tell my colleagues that when I was ill I rubbed shoulders with a fella who blurted 'Its only those with a sinister motive who want to keep people away from the courts' and at the same time had a monika under his name reading 'watch out there are Claims Touts about!' That's really, really funny!

 

I dare say that following this post, ther will be more of the usual agin me, the quote out of context and the dig and the jibe, and precious little hard lawyering. In all seriousness, I had not figured that contributing here would be so empty and unrewarding; that I would be met with rudeness and abuse. Sorry to anyone that may have valued my contributions, but I never needed the help, I only ever gave it away.

 

X20

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Hello Surfaceagentx20

 

People registered on the site will always be suspicious of someone in your profession offering help. Some have been fleeced by Solicitors offering to get their charges back for them, so you can see why most are sensitive when it comes to someone in the legal profession joining the site.

 

We do have a few solicitors who are regular visitors to the site, and are well respected and trusted by most of the older users of the site. It may take some time to win over their trust, only you staying here to help, and proving to be very helpful with legal questions, will earn their trust.

 

I would like to see what you have to offer to people who are in serious debt with nowhere to go. We do not encourage the excessive use of Private messaging to answer questions that should be on an open forum.

 

If you would like to help out, then i ask you to stay a while, maybe write up some guidance tips on how to deal with a DCA from your experiences with them, see how things go from there.

WARNING TO ALL

Please be aware of acting on advice given by PM .Anyone can make mistakes and if advice is given on the main forum people can see it to correct it ,if given privately then no one can see it to correct it. Please also be aware of giving your personal details to strangers

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Quite agree with ukaviator...

 

If you really want to help , prove your worth and earn our trust x20 :)

 

After all, a seasoned law professional should have more backbone than 33 posts and a few days off work.

 

A lot of people here are severely disabled and or longterm ill, have extreme problems such as caring for disabled people and the like and give their time freely as a public service to others in extreme difficulty.

"To love unconditionally is the greatest gift, laughter is a close second" .To give your time to help others after being helped here is the best way to show your appreciation to your fellow CAG members.

 

Please note that this advice is given informally, without liability and without prejudice. Seek the advice of an insured qualified professional if you have any doubts. All my knowledge has been gained here, for which I'm very grateful. I'm a Journalist, not a law professional.

 

If you do PM, make sure to include a link to your thread as I don't give out advice in private ;)

BB 13 - DCAs/banks and solicitors 0.

 

I get a fresh start to get on with learning to live with severe disabilities when they could have had something if they'd been understanding...

 

<--- If you feel I've helped, please twinkle my star :)

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There is something quite depressing where, after spending hours of time in preparing an opinion running to 1400+ words, you're met by a bloke with an attitude just 8 minutes later, who claims you're a front for a debt collection agency. And by another who has the affrontery to suggest a year in a DCA threat centre would seem like my thirty. I've operated against DCAs. They're easy. They couldn't quote chuncks from the Insolvency Rules if they had the book in front of them. To be branded as in cahoots with all of those guys is deeply, deeply offensive.

It is for these reasons that I have called it a day. With a bit of luck I will be fit and well by Monday and able to return to a place packed with proper lawyers. There is I suppose one minor benefit from my short lived experience here in that I'll be able to tell my colleagues that when I was ill I rubbed shoulders with a fella who blurted 'Its only those with a sinister motive who want to keep people away from the courts' and at the same time had a monika under his name reading 'watch out there are Claims Touts about!' That's really, really funny!

I had not figured that contributing here would be so empty and unrewarding; that I would be met with rudeness and abuse. Sorry to anyone that may have valued my contributions, but I never needed the help, I only ever gave it away.

 

Bye then...:rolleyes:

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There is I suppose one minor benefit from my short lived experience here in that I'll be able to tell my colleagues that when I was ill I rubbed shoulders with a fella who blurted 'Its only those with a sinister motive who want to keep people away from the courts' and at the same time had a monika under his name reading 'watch out there are Claims Touts about!' That's really, really funny!

 

You know what is really really funny. Everyone including yourself has to quote yourself a ''monika'' under their name stating watch out there are Claims Touts about.

 

I believe the word you were looking for was MONIKER.:roll:

 

Please feel free to stay as I will not be responding to any more of your posts.

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I'll be able to tell my colleagues that when I was ill I rubbed shoulders with a fella who blurted 'Its only those with a sinister motive who want to keep people away from the courts'

 

You'll also be able to tell your bosses...sorry i meant collegues, that you havent achieved anything on here ;-)

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I do hope that emmliss hasn't been confused too much by all this

Any typos spelling mistakes are due to leprechauns in my keyboard they move the letters around sometimes (amended just for Bookie)

 

"How do I...?" A Dummies' Guide to this Forum

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Please Donate if you can - help CAG help others

 

I offer help and advice in good faith, based on my knowledge and experience. I am NOT a legal or financial expert. There are many CAG members and site team who are better qualified. Please do not make major decisions based on my advice alone.I do not give advice via P.M's. If anyone can correct my mistakes or improve on my advice, please do.

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I'm normally pretty easy going and tolerant but I find it quite despicable that a couple of bush lawyers, motivated by arrogance and jealousy, have driven away someone with seriously useful qualifications and experience who could have help many people here.

 

Unlike X20 I won't be leaving CAG but I will be unsubscribing this thread.

 

Emmliss, the advice you require is buried away in this thread. Unfortunately someone else will have to help you uncover it. Sorry.

I really do appreciate all those 'thank you' emails - I'm glad I've been able to help. Apologies if I haven't acknowledged all of them.

You can also ding my gong if you prefer. :)

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I'm sorry that your thread got out of hand ...........

 

 

Can we please keep the thread free of insults they dont help emmliss just cause more confusion

 

 

saint

Any typos spelling mistakes are due to leprechauns in my keyboard they move the letters around sometimes (amended just for Bookie)

 

"How do I...?" A Dummies' Guide to this Forum

FAQ

Forum rules

Cag toolbar

 

 

Please Donate if you can - help CAG help others

 

I offer help and advice in good faith, based on my knowledge and experience. I am NOT a legal or financial expert. There are many CAG members and site team who are better qualified. Please do not make major decisions based on my advice alone.I do not give advice via P.M's. If anyone can correct my mistakes or improve on my advice, please do.

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