Capquest/Bank of Scotland. SD For Bankruptcy **WON + COSTS**

[42man]

I believe that this demand is frivolous and unlawful as it was delivered by 2nd class post, (according to the Insolvency Service minimum service is by registered post - unless substituted service has been granted which it appears has not been.) and feel that the Insolvency service is being used as a debt collection tool when the account is disputed entirely.

 

I quote - Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly..' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

In light of the above information, I request the judge sets aside the demand and gracefully request he/she order payment of my costs by the alleged creditor.

 

As a lone parent/low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

 

Also if you have tried to call the number on the demand and have failed to get through....then you could also add this -

 

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.

[gilly5001]

oh my gosh

thankyou thankyou thankyou, i just couldnt get myhead around what i was supposed to write

 

thankyou so much

cant wait now to get this to teh court

thanyou 42 man u are a star

[42man]

Gilly just have a really careful read and try and understand as best as you can what is being said.....

[gilly5001]

is it ok to have a statement attached to back of 6.5, can i paste details in or hand write them in, i am such a dunce I know but not used to this sort of thing, the space on the form doesnt see very big. also 6.4

the names and addresses of the persons upon whom this application should be served are: (who do iput here me or them??)

and then the applicants address for service??? thats mine right?

[gilly5001]

thanks for all your help 42 man, ive read and get it totally, I just wouldnt have been able to word it like that

thanks again

[gilly5001]

ok just been to court and had documents sworn in, shall wait now and see what happens. really hoping judge sets aside without hearing was nervous just handing them in

Gilly5001

[Duffers Mum]

Gilly - doubt they will set aside without a hearing. My recent experience of a set aside hearing lasted approx 2 minutes in with the judge (1st Cretins didn't attend), judge asked me a couple of question, I answered, he set aside and awarded me costs, which 1st Cretins kindly paid me today.

 

There is nothing to worry about - good luck

[gilly5001]

ok now i need help,

 

have today recieved letter from court to attend hearing for set aside next thursday at 10am. prob is im working and there is no way whatso ever i can have the time off. i cant even explain it will be really frowned upon. can someone ie hubbie go on behalf or can i write to court etc, im not sure what to do now, had so much tim eoff when could have gone and now working get this.

prob too getting there on time into city centre london even if work would give time which i know there is no way whatsoever on earth i could ask

any advice please!!

[Duffers Mum]

I can only say that when I attended for a set aside against 1st Cretins, I was in and out in 2 minutes, is there no way you could take a day's leave or something from work I would think it important that you do attend as the other side might and that could be to your detriment.

 

Good luck

[macushlamoon]

had a hearing to set aside SD with CQ - they didn't show was in and out in 5 mins. But there is always the chance that they do show up, If possible get the morning/afternoon off??? Dentist appointment maybe

[gilly5001]

Looks like im gonna have to make up something. prob is in my work appointments not a good enough excuse to not be in, will have to think of something.

is there anything i need to take, defence etc or do I just make sure i know details of case in case ask questions?? any one any ideas what questions I'll be asked

dont want to mess it up at this last minute. oh and an update capquest have failed to supply the CCA and has now been 29 days, will be 34 by the time hearing on wednesday morning!!

does this put me in a good position??

Gilly

[42man]

Definitely !!

[Duffers Mum]

Gilly - don't forget to fax your costs through to the court a day or so prior to the hearing and to also send a copy either by fax or recorded/special delivery to Capquest. Good luck

[gilly5001]

er how do i do the costs thing, the documents I swore in mentioned costs in them, the ones about enquiring how much a solicitor would have charged me to deal with this, do i need to do something seperate now??

[Duffers Mum]

Gilly - I just listed x amount of hours @ £9.50 (I think thats the amount you might need to check) then I listed fuel for x amount of miles at 40p per mile, parking (these for the time i attended to swear affidavit and also to attend for set aside) then disbursements, like postage costs, my costs were very realistic and only came to about £140, I know some people who claim up to £300/£400. You have to head it COSTS AS LITIGENT IN PERSON as well.

 

Good luck

[42man]

Gilly....

 

Get a piece of paper and type at the top

 

COSTS AS LITIGANT IN PERSON

 

and as an example - 10 hours of research into the Insolvency Laws @ £9.25 per hour

10 hours of research into the Consumer Credit Act @ £9.25 per hour

Parking

Postage

Time off work

Childcare

Mileage @ 40p per mile

 

Fax / Send this to the court 24 hours before the hearing....

 

OR

 

You can use the form X20 has supplied here, but change the title to Litigant In person Costs

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/156641-capquest-statutory-demand-help-4.html#post1765170

[gilly5001]

OK, I have just faxed costs to the court and capital One. what should i take to court on wednesday? should I take the defence I have already submitted (it was about 4 pages)? is there anything else, research on cca etc.

dont want to screw it up at the final hurdle. still havent decided how Im gonna get off work wednesday morning, even if it is only for half an hour!!

[42man]

Take as much as possible that you might need to refer to...

 

The high court law cases....

 

Your research you did on the Insolvency Laws

 

Consumer Credit Act also...

[gilly5001]

hi there

well what a day!

Still no CCA from capquest, so went to court this morning. They did not show.

the district judge called me in and showed me a letter she had rec'd from capquest stating that I had no grounds and therefore they would be showing up.

There was a witness statement which they hadn't signed. they had advised they had bought the debt but there w\s no notice of assignment and there was a copy of the credit agreement, which the judge noted there was only one side of. I explained to judge how I havent rec'd such agreement when I have asked for it!!

She then explained that they hadn't supplied the evidence they needed due to the claims I had made.

They also suggested that I didnt have my own defence merely a copy of one from this website and they had sent a photocopy of a defence posted on here. I again explained that whilst I had sought advice and help from here I understood what I had submitted. The judge replied that it is fine to get legal advice from the website!!

anyway, set aside awarded and costs !! yippee

 

Then got home and found letter similar to one capquest sent to court ONLY they had signed the witness statement on mine LOL!

So my question now is, whay are they withholding the credit agreeement if they have one?? I asked for it 34 days ago!!

thansk for everyones help on here

Gilly

[gilly5001]

sorry post above should read would not be showing up!

[Having_A_Knightmare]

Another result... Well Done:D

 

HAK

[42man]

Brilliant Gilly very, very well done !!....really pleased for you...

[nevos]

Well done gilly..another notch on the belt for CAGers..

[Duffers Mum]

Yea Gilly - Congratulations, its a good feeling isn't it

 

Now just remember if they don't pay you within the necessary timescale get ready to send in the bailiffs

[tiglet]

Well done honey - had mine set aside today!