Stat demand set aside refused by court! hfc hp - 1st credit/connaults/marlin

[postggj]

many thanks ukaviator and john chris

 

knowledge is power

[surfaceagentx20]

GGJ, a second application to set aside may be submitted but the applicant will have to rely on grounds not appearing in an earlier application. If there was an earlier application which was refused there would be no obligation to refer to it.

 

As for what follows GGJ's query. sorry guys but I don't think it is helping Sirhumpy with his difficulty. CPR 18 has no application to insolvency proceedings. The Insolvency Rules 1986 is the relevant code, not the CPR. Sirhumpy isn't a Claimant. First Credit aren't Defendants. There hasn't been 'a Defence' the SD won't be allocated to track.

 

JonCris repeats my point. Insolvency proceedings are not debt recovery proceedings. A succesful petitioning creditor will not recover his debt from the debtor. However, and this is really difficult to say but I'll have a go. To say in an application to set aside a SD that the bankruptcy court is no place to bring debt recovery proceedings is to suppose that any subsequent petition will be precisely that. I agree the petitioner might intend his petition (with his fingers crossed) to be debt recovery proceedings under the guise of insolvency proceedings. However, you will never get the petitioner to admit that and you will never get the court to regard insolvency proceedings as anything other than insolvency proceedings.

 

As for there being rotten judges, they are required to dispense justice blind without fear or favour and as the law requires. Suggesting that the judge in question was influenced by disreputable factors, besides being potentially libelous, assist Sirhumpy not one jot. The applicant has to provide the judge with the fabric from which to construct the judgment which the applicant seeks. With apologies for being lawyerly, the fabric is IR 1986 6.5(4)(a)-(d).

 

I think Sirhumpy may take some comfort from the fact that the decision to reject the application to set aside the SD will not have been communicated to the opposition. In my opinion though he is in danger unless he can produce grounds within 6.5(4) or unless the opposition's method of service was below standard.

 

Question for Sirhumpy - how was the SD served?

 

x20

[postggj]

hi surface gent

i see where you are comming from

 

was it ist or 2nd class post

or

handed in person

 

should have remembered that one

[tinkerbell20]

subscribing

[ukaviator]

For people subscribing:

 

Proceedings are commenced when the claimant ‘issues’ a claim form that must contain or be accompanied by the particulars of claim. The claim form and particulars of claim are critical documents and they must set out properly a summary of the basic facts (but not the evidence) of the claim against the defendant; a failure to do this may allow the defendant to strike out the claim against him.

 

The claim form and particulars of claim have to be served on the defendant in accordance with special rules and within prescribed time frames. When a defendant is served with court proceedings, he has to indicate whether he accepts the claim or intends to defend the claim. Again this must be done within prescribed time limits and the court must be notified of the defendant's position.

 

If the defendant wishes to defend the claim, he must serve a defence (including any counterclaim) normally within 28 days of receiving the claim form. The defence is also a critical document because if the defence is regarded as weak, the claimant can seek to strike out the defence. A failure to serve a defence will allow the claimant to enter judgement in default against the defendant.

 

Further court documents may be served and filed at court in order to clarify each party's position. All court documents will be accompanied by a statement of truth verifying the truth of the information contained in the document. The Claimant is required to disclose to the Defendant, the documents he seeks to rely upon and also the documents which adversely affect his own case.

 

As there are no documents, No Burden of Proof, no case to answer.

 

 

Edited August 25, 2008 by ukaviator

[KER]

subscribing

[surfaceagentx20]

Eh?

 

Aviator, I think you meant to post that stuff to a different thread!

 

x20

[JonCris]

surface I made my remarks based on the fact that I was fuming & that Judges of this level are well aware of the High Courts position regarding the use of SD's to recover consumer debt & should have acted accordingly the risks to the debtor may be enormous & completely over the top in the damage it inflicts

[SirHumpy]

The SD was sent second class post - received on 4th Aug - whiich is the date I used on the set aside paperwork.

 

One question - if Connaught were serving me the SD on behalf of first credit, and they have replied to my CCA request by saying they have closed the case and sent it back to first credit, could I not agrue therefore if they did goto the next step (1st or connaught) - that they have told me this matter was closed - I have the letter from Connaught.

 

Another thing is I actually have another DCA chasing this debt - the other has actually served me a letter of assignment (though it was on there own letterhead). - could I not use this as a defence - that it is legally assigned to another DCA (whom are about to default on a CCA request).

 

Thanks guys for everything

[surfaceagentx20]

I knew it. So the creditor couldn't meet the requirements for service in any affidavit filed in support of the petition. He would be likely to have the petition refused by the court before it was ever issued.

 

So glad the court didn't accept your application because if it had been it would have been served on the creditor and the creditor would have been relieved of the obligation of proving service.

 

This rather reinforces my point that an application to set aside a SD served inadequately can play into the creditor's hands and that frankly, it is dangerous to lodge such an application if the ground relied upon is limited to non-compliance with a s77 request delivered to the creditor after service of the SD. Only my opinion though folks.

 

I regard the statement delivered saying 'the case is closed' and 'debt re-assigned to First Credit' as good evidence that

 

[1] the creditor has withdrawn from demanding payment of the debt,

[2] the debt is no longer payable to the creditor and

[3] the creditor has assigned the benefit of the debt to the original assignor.

 

Further still,

[4] the receipt of a letter from DCANo2 claiming to have the right to recover the debt by way of assignment is good evidence of the truth of [1]-[3] above.

 

In those circumstances I would not submit a second application to set aside the SD on the new grounds [1]-[4] because

 

[1] the petition would not be issued for want of proper evidence of service and

[2] grounds [1]-[3] came into your hands from the creditor and may be taken as tantamount (though granted not explicit confirmation) to the creditor giving you notice that the creditor withdraws the SD. Proceeding with an application to set aside a SD which was withdrawn before the application to set aside was made may result in an adverse costs order. It happened to me once.

 

x20

[postggj]

surfacegent

 

glad this is sorted

should have asked about how the sd was served

 

thanks for keeping me on my toes

 

many thanks

[SirHumpy]

I havent heard from DCA2 since this started - I got theres and connaughts letters within days of eachother.

 

The debt being re-assigned to 1st credit could be a bit of a red herring though couldnt it? - they issued the SD on behalf of 1st credit - so dont 1st credit still have the ability to follow it through. (1st credit and connaught being the same company/group)

 

The problem with the service thing is I acknowledged it - by requesting a CCA.

 

Thanks guys

[postggj]

hi sirhumpy

the dca serving a sd by second class post is a no no

 

by requesting a cca you are not acknowledged any thing

the cca is only asking the dca to proove the debt

[palomino]

X20, Does what you say mean that SirHumpy still has to attend the SD hearing, obviously taking the points in post 31 with him/her?

[42man]

I didn't think CPR part 18 can be used in the Insolvency Act ?? I thought that could only be used for CCJ claims ?

[surfaceagentx20]

Palomino, there won't be a hearing. The judge rejected the application to set aside the SD before issue.

 

42man, you're spot on.

 

x20

[palomino]

Palomino, there won't be a hearing. The judge rejected the application to set aside the SD before issue.

 

x20

 

 

Apologies, I'm now confused.

 

The DCA issued a SD. The application to have this set aside was refused.

However that means the SD has not been set aside and presumably there will now be a hearing for it.

I guess I've missed something somewhere.

[surfaceagentx20]

A SD is not a document which is issued by the court. It is merely something which is served by the creditor. When it is served therefore it does not come endorsed with a date for a hearing or anything indicating the court is involved.

 

The SD's primary purpose is to demand payment, but there is a secondary purpose which is that if the demand is not satisfied or secured etc within 21 days of the demand being served, that failure is evidence of the debtor's inability to meet his debts as and when they fall due.

 

The definition of insolvency for the purpose of The Insolvency Act is an inability to meet one's debts as and when they fall due. Once the 21 days have expired if the debt has not been discharged, the creditor may present a petition to the court for an order that the debtor be judged a bankrupt.

 

The petition will be supported by an affidavit in which the petitioner will swear that a SD was served, the debt was not met as required and that the debtor appears unable to pay his debts. It is at this stage the court first become involved. The petition will be endorsed with a date for hearing at which the debtor should appear to answer the petition. That's when the hearing takes place.

 

There is as we know, a facility for the debtor to apply to set aside the SD. Having the SD set aside has the effect of preventing the creditor from relying on its service and the non-payment of the debt referred to as evidence of an inability to pay one's debts. Result: creditor can't petition in bankruptcy.

 

The application for a SD to be set aside is assessed by the court in two stages. Stage 1 involves a Judge examining the application. If the Judge believes the application sets out grounds for the SD to be set aside he will direct that the application be issued and that a hearing be fixed (Stage 2) to enable the creditor to come along to court to argue why the SD should be allowed to remain.

 

On the other hand, if the Judge figures the SD does not demonstrate adequate grounds (as in SirHumpy's case) he dismisses the application there and then, the application doesn't get issued and so there's no 'Stage 2' hearing of the application to set aside the SD.

 

Does that make things clear?

 

x20

[palomino]

Very!

Many thanks for the very full and clear explanation.

 

I had assumed that there was a hearing for the SD itself when, as you say, there isn't. As you can surmise I haven't been through the process myself .

[SirHumpy]

Hi guys!

 

I got a letter today from one of the two DCAs chasing me for a debt from 2004. The other DCA is Connaught, who you may remember did the SD thing - that Im waiting to hear on (nothing yet - I've decided that after advice from here the letter they sent about sending the debt back to 1st direct means the SD wont be completed). This DCA Marlin today sent me a letter basically saying they were still waiting, had all the assigned rights such as data rights etc.

 

I CCAed them on the 14th Aug (they signed for the letter on this date). My question is how long do they have to produce a reply? - Is it 14 days or 14 working days? AND should I mention the other DCA to them in a reply?, and as the only letter of assignment I had was signed by a Marlin staff member on Marlin headed paper should I ask for proof they have been assigned this debt?

 

Thanks again guys

[spamheed]

it is 12 working days, in requesting the CCA you have placed the account into dispute, you need do nothing more. you have made a legal request and now you are waiting for their response. make sure you retain copies of all of your letters and obtain proofs of delivery. Marlin should have told connaught about your request, if they haven't, then this really isn't your problem

[SirHumpy]

it is 12 working days, in requesting the CCA you have placed the account into dispute, you need do nothing more. you have made a legal request and now you are waiting for their response. make sure you retain copies of all of your letters and obtain proofs of delivery. Marlin should have told connaught about your request, if they haven't, then this really isn't your problem

I dont think they know about eachother - which makes me wonder where they got the info from in the first place.

[spamheed]

again, you have made a legal request, it isn't your concern if they haven't passed on your request to the new DCA, all you can do is right them and inform them that the account is in dispute, just because they've bailed out doesn't stop the clock from ticking. whether they sell/transfer or give up on the debt, the deadline remains the same. after 12 days they are in eefault and you need to complain

[saintly_1]

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

 

Try sending them the above letter

 

saint

[SirHumpy]

I CCA'ed Marlin in August - havent heard anything until the last few days when they started again.

 

I cant find the CCA request not complied with letter - can anyone help?

 

The reason its taken this long for me to look at sending them the letter is that I had another DCA chasing the same debt.

 

Thanks!