Capquest Statutory demand help Urgent **WON + COSTS**

[stuscfc]

Ok just got the wife as she is better on the phone to call j okeefe and the person on the other end didnt know who she was then put on hold and the number which was given on the SD was to the collections department was then given another number (which was supose to be direct ) phone which started 012 so not 087 also had to go through same phone system and she wasnt there she was off all week and was asked to put anything in writing.So what can i tell the judge now lol hmm what dose it say in the rule regarding this suppose to have a direct number.

[42man]

You can write that you have tried to call, but the initial number was not correct, and say that they have asked you to put it in writing....(the judge will not like this)...put the time and date you called too...

 

A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid

[stuscfc]

The first person as my wife said "dont know anyone by that name in the company". Maybe he was new dont know but the second number was a direct line as he said after being put on hold which also came up collections but my mistke they didnt say off all week lol they said to her "shes not in the office at the momment" wife asked a lot of questions where is she when will she be back like that they said "they didnt know when she would be back. But what i said was wrong that she was off all week that was my mistake. But the wife did well grilled them she used to do a phone based job thats why i did it and she use to work with sol knew what to say with out revealing anything about who we were.

[surfaceagentx20]

I advise that any person intending to claim a document or process in insolvency proceedings is invalid owing to some irregularity should first satisfy himself that he will be able to demonstrate to the court that substantial injustice has been caused owing to that irregularity.

IR 7.55 explains why:

 

No insolvency proceedings shall be invalidated by any formal defect or by any irregularity, unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the court.

x20

[stuscfc]

That is a fair point just because i couldnt get through doesnt mean that the person who next trys the person might get through

[stuscfc]

hi again ok doing the costs form to send the N260 form just a few questions.

as i havent got a case number do i put in myself v capquest also it says in the box in the corner IN THE is this where i put the court adress. thanks

[42man]

Yes...your name and CQ....and yes again The local county court name...

[stuscfc]

All done thanks m8:)

[stuscfc]

Ok a bit paniced just had a letter delivered through the door by hand from the court.Bear in mind im due in court tomorrow it goes.

 

in bankruptcy

 

before DJ xxxx

on 21 of this month

 

my name

 

 

and in the insolvencies act 1986

 

in bankruptcy

 

upon the application of myself

 

presented to the court on 21 of october

 

 

and upon reading the evidence

 

it is ordered that the matter be adjourned to a date to be fixed.

 

thats what it says what does this mean i havent beeen to put my case forwar is it because of the letter they sent me and the court wishing for the court to find in my favour and it was hand delivered and posted through the door about 10 mins ago.I am a bit worried about this tbh.

[42man]

I need to have a read through the thread and spend a bit of time looking through this.....

 

When did you get the stat demand ?

 

What else have you received in the post ?

[42man]

It would seem like the judge wants to adjourn the stat demand hearing to a later date....ring the court first thing in the morning, just to check...

[42man]

It may be because the courts have too many other potentially long cases tommorrow, or the judge may be ill.....but ring first thing just to check...

[stuscfc]

Thanks m8 wasnt expecting this tbh getting ready booked a day off work then this came threw me a bit.

Ok the dateon the SD was the 7th of august and when i received it was the 12th and got it to the court the27yh as the date is stamped.

The letter i had and was sent to the court basicaly is saying that they know that there is a dispute and that quote"we do not accept that the debt is not due but in view of the time considerations and use of the courts time we ask that the application be granted but with no order of costs.if as we anticipate we subsequently obtain information which enables us to prove that the debt is due we will procced by issuing a claim in the county court which will allow the applicant the opportunity to defend the claim.

that is what the last paragraph says.the res goes on about not being able to deal fully with the set a side and needing more info from the original creditor which may not be able to prepare and serve evidence in opposition.

so any other thoughts or am i worrying to much about this.

[42man]

Usual simpering cop out by Capquest.....they were quite happy to issue the stat demand without ANY paperwork !!! ....get to court and show the judge how incensed you are at receiving a statutory demand and claim your costs !!!! As the letter tonight has been hand delivered it seems likely that the judge has fallen ill....

[stuscfc]

Ok ty again m8 im a bag of nerves now lol i had a feeling it maybe something like that but will phone in the morning to make sure.Was going to spend the evening going through everything before tomorrow but now will have a rest as been on this now for a few days.The prob is i have taken off tomorrow and will probable have to take another day but i have already sent in my costs claim how could i add another day off for the costs claim.

[surfaceagentx20]

Can you see a court seal on the document / order?

 

x20

[stuscfc]

HI x20 yes there is a seal on the order saying the court name sorry for the late reply.

[stuscfc]

Hi just contacted the court the DJ was unavailable to day so all his hearing have had to be rearranged for when they dont know so that clears that up.Panic over lol

[stuscfc]

Hi all been a bit side tracked with a few things lately but trying to get myself back on track with this case.Wish me luck for Tuesday as that my date in court not worried about seeing the judge after reading the other cases that have been on here lately so well done to all you that have won against CQ.

My next fight will then be with Orange/Moorcroft/Ndr over a missold phone contract for my wife and reclaiming money owed to a cousin for a fee paying DMP provider so it will be all go lol.For now though just have to get through tuesday.In advance would like to thank x20(sounds like a spys name lol) and 42 man for there help and any others that have contributed over the time i have been posting here.Thanks again.

[stuscfc]

Found this bit of case law on swarb can anyone put this in laymans terms for me as my head hurts reading it lol but seriously what is the jist of it i can figure out a few bits ta.

 

 

1989

 

Lord Justice Nicholls Insolvency, Equity

 

A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form. Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality. "In my view, the right approach to paragraph (4) of rule 6.5 is this. Under the Act, a statutory demand which is not complied with founds the consequence that the debtor is regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1), in the absence of an unsatisfied return to execution or other process, a debtor's inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with. When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand 'ought' to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court's intervention is called for to prevent that injustice."

and "Nevertheless, applying the approach which I have indicated above as the correct approach to these statutory provisions, in my view it by no means follows from the existence of these defects that this statutory demand ought to be set aside. The court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. That must require a court to have regard to all the circumstances as they are at the time of the hearing before the court. There may be cases where the terms of the statutory demand are so confusing or so misleading that, having regard to all the circumstances, justice requires that the demand should not be allowed to stand. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone." and "In these circumstances I am in no doubt that, despite the mistakes in this statutory demand and the use strictly of the incorrect form, and despite the debtor not being aware of the precise amount of the debt when the demand was served on him, justice does not require that this statutory demand should be set aside. I can see no injustice in the consequences which flow from non-compliance with a statutory demand being permitted to flow in this case, despite the existence of those features."

Statute References omitted

 

This is from a case past but there are no other details which would point this to a person i have removed the heading details.

Edited November 23, 2008 by stuscfc
aligning paragraphs to close together

[42man]

What sort of case law do you need.....as your debt is statute barred this is a complete defence along with the non production of a CCA, no default notice in the prescribed manner, no statements (excessive charges) no notice of assignment....

[stuscfc]

Thanks mate my fault like to be well prepared lol for everything was just looking for something to put in my folder just incaes so to speak.

[42man]

Chezza's thread has some good case law in it Stuscfc

[stuscfc]

Thanks mate had a look at that thread there are a few good quotes on there which i have printed out my folder is looking quiet thick now with all the letters and copies of this and that.I have contacted the court to clarify the time and make sure the case is still on as it has been put back once already, and asked about the judge was told hes (loverly) so thats a good start took ages to get through as well but ready as ill every be now.Wish me luck nerves prob wont kick in till im there be a wreck then lol but got my wife to hold my hand lol.

[surfaceagentx20]

The jist is this. It means just because the SD contains errors it does not follow like night follows day, that the SD will be set aside because of those errors.

 

Per Nicholls LJ:

'There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone.'

 

x20