Statutory Demand / Bankruptcy On Disputed Debt - Connaught / First

[ghands]

Hi Guys,

 

This is the continuing saga in my fight against First Credit for a debt they claim my Girlfriend owes according to them. The debtors were Lloyds and up until I met my partner she had been paying out £50 a month on it, and had paid back over 50% when they demanded she increase her payments and suggested her remotgaging.

 

Anyway, when I met her I asked her about this debt, and she didnt even remember signing an agreement, and just assumed the debt was hers and she forgot about it.

 

In March / April I CCA'd First Credit and threatened legal action if they got in contact again without providing a valid CCA.

 

Over a month passed and no CCA, so my partner stopped paying them as they hadn't provided any agreemnt.

 

Now today she recieved a Statutory Demand for Bankruptcy from Connaught collections, just as they had threatened.

 

She has been crying all day thinking she will lose her car.

 

First / Connaught have been threatening and hassling from the beginning, they cashed the CCA cheque and signed for the letter but never acknowledged it.

 

At least I want to stop the bankruptcy order. I also want to seriously get back at Connaught First Credit - can we claim against them for harrassment on a disputed debt. Finally, can we get back the 1000+ my partner paid before the CCA

 

I know we need to act quickly on this, so any advice is appreciated.

 

It was sent by UKMAIL, no idea if it was a signed for thing- my partner lives in shared house and there would have been no people in to sign for it.

[ghands]

Does it matter that I CCAd First, but they the Statutory demand comes from Connaught?

[bigpeterlg22]

i would advise as others have done that it is an an abuse of process to send a SD after you have requested a CCA which by your sending indicates the debt is disputed.

 

you should write back & tell them this pointing out that unless they confirm within 48 hours that they do not intend to petition the court you will have no choice but to issue proceedings forthwith for none compliance with your CCA whilst at the same time drawing their conduct to the attention of the court & requesting costs

 

i have quoted clutchingatstraws post below as it does go into details about sd's and counterclaims

 

These (edit) are using a statutory demand as a threat, best grounds for set aside is probably that the amount stated is wrong. This is what i found on google I'm sure there will be more advice to follow

 

Cas

 

 

 

The procedure to get a statutory demand set aside.

 

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.

One method of avoiding bankruptcy is to get the statutory demand set aside.

 

To successfully get a statutory demand set aside one or more of the following must be satisfied:-

• The amount stated on the statutory demand is disputed.
  
• The person issuing the statutory demand also owes money. This is called a counterclaim.
  
• The person issuing the statutory demand is holding security that equals or exceeds the amount owing.
  
• The demand was issued in error.
  
• The amount owing is less than £750
  
• Execution has been stayed on a judgement debt.
  
• The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.
  
• The creditor failed to comply with the rules and prejudiced the debtor in the process.
  

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What are the time limits to get a statutory demand set aside?

 

An application to set aside must be made with 18 days of the statutory demand being served.

 

What forms must be used to get a statutory demand set aside?

 

Forms 6.4 (application) and 6.5 (affidavit) must be completed and taken to the court.

 

Can the court dismiss an application to set a statutory demand set aside?

 

Yes, if application if there are no reasonable ground to do so.

 

 

What forms are typically used in the statutory demand process?

1. Form no: 4.1
   Statutory Demand under section 123(1)(a) or 222(1)(a) of the Insolvency Act 1986
   Download Form 4.1.pdf*
   
2. Form no: 6.1
   Statutory Demand under section 268(1)(a) of the Insolvency Act 1986. Debt for Liquidated Sum Payable Immediately
   Download Form 6.1.pdf*
   
3. Form no: 6.2
   Statutory Demand under section 268(1)(a) of the Insolvency Act 1986. Debt for Liquidated Sum Payable Immediately Following a Judgment or Order of the Court
   Download Form 6.2.pdf*
   

Setting Aside Statutory Demand

 

If a debtor wishes to set aside a Statutory Demand then he has to make an application to the Court (there is no fee payable). The application must be supported by an Affidavit which sets out the reasons why the debt is disputed.

The grounds of setting aside the Statutory Demand have to be legitimate. If they are not, then the Court may dismiss the application without a hearing.

If the Court does allocate a hearing, both parties will be required to attend the Court and explain to a District Judge why the application should be set aside or otherwise.

 

Although SD must be taken seriously at all times don't get upset there are a lot of people who will help you here.

 

Set aside forms are here

 

 

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

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

Which form did they send you?

 

If the debtor disputes the claim, he or she can apply for the statutory demand to be set aside.

 

The bankruptcy court will halt the bankruptcy if there is any dispute about the sum outstanding.

 

It can be relatively easy for a debtor to have a statutory demand set aside and the process can result in an order for costs being made against the creditor, so caution needs to be exercised before using a Statutory Demand.

 

In addition to the CCA I would send the following letter by registered post (Special Delivery if you can afford it) ASAP.

 

Remember keep copies of all you send and all post recipts etc.

 

The letter is one of Curlybens edit out the irrelavent bits to do with the S.A.R - (Subject Access Request)

 

 

 

 

REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES.

 

Dear Sir/Madam,

 

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. This letter supersedes the Data Protection request made to on the **DATE**. The information must be furnished by the **DATE**, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with **CREDITOR**.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully,

vbrep_register("1352624")

[berrylover]

I believe that they still have to provide a CCA. Is it for a credit card? Loan? Some of the others can help you to try and get the SD set aside and probably give you more advice than me.

[KER]

subbing because that's a great post to advise from in the future!

[berrylover]

me too, you never know I might just need it one day,

[ghands]

I requested the CCA in April, but nothing. So, should I send off the set aside forms, and contact First Credit? As stated the debt that is alledged debt is for a Credit Card.

Edited September 3, 2008 by ghands
more details

[ghands]

Something interesting on Form 6.1 of the demand, page 2 there are the particulars of the debt.

 

A - The Debt was incurred by monies under a financial agreement. The debtor is in breech of the repayment terms and has failed to adhere to the tersm and conditions of the repayment arrangements. The debt has been assigned as shown on Part C (p3) herof.

 

B The debt is in respect of outstanding monies owed to the creditor by the debtor for non-payments of a Lloyds Tsb agreement. The benefit of the debt has been assigned under and agreement to f1ST Credit (finance) Limited 03/07/2006

 

C The amountdue is 1,360.

 

Section A according the form much include WHEN the debt occured - it doesn't!!!

 

Does that mean anything. Also how do you fill in the PDF forms for Set Aside, I don't seem able to edit them.

[saintly_1]

I would get the set aside forms as advised but I would also be tempted to send the account in dispute letter to Connaughts

 

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

 

 

Amend to suit

 

 

saint

[fiftypence]

I recently received a SD from CONnought and ignored it, they then sent a letter saying they were going to petition for bankruptcy, so to be on the safe side I CCA'd them. They wrote back saying they had closed the file and returned it to the OC. Make of that what you will.

 

I think these posted out SD's are an outrageous abuse of process

 

From your opening post I would think you have enough evidence to get the SD set aside. Also someone else mentioned on another thread about trying to phone the person who signed the SD, if you can't get to speak to them after repeated attempts that would be further ammunition to get the SD set aside.

[smt37]

Hi,

 

The insolvency.gov site also provides MS Word versions of the forms to be filled out. As I'm new I can't post the links until I've made 5 posts! All you need to do is simply use the ones above, but replace .pdf with .doc.

 

For Form 6.4, I hope this helps:

 

(a) your name and address

Date, time and place - leave blank for bankruptcy clerk to complete.

(b) your full name and date of the SD sent by DCA

© the date of the affidavit (i.e. the day you get it sworn)

(d) the person to be served is the DCA, so their full address

(e) is your address

 

The court will send you a copy in the mail with the date time and place completed once they have consulted the judge. Your local court may well do it there and then.

 

Your g/f is very, very unlikely to lose anything other than a little time at the hearing (normally takes about 10 minutes). For the prep work, you can claim costs. I don't know of anyone that has lost the application to set-aside yet on the basis of a non-existent CCA.

[smt37]

There you go! I've made 5 posts. The URLs are:

 

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

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

[blipvert]

subbing