Statutory Demand Ref not known to court?

[BritishLion]

Hi Guys

 

I have been in a DMP for a few years with all creditors happy, but one has appeared from a overdrawn bank account from 2001. We have not heard from them in the meantime and Phoenix/Marlin/Mortimer Clark have issued a hand delivered statutory demand for this. It was a joint current account, but the deman is in the name of one of us only, so that is not right straight away.

 

Anyway, we tried to have it set aside at our local court at the address they gave to us, but the court on the paperork says it can not find a case under the reference number on the stat demand, does this just mean its a scare tactic?

 

Our debt management plan spoke to them, but they said they want the full amount now (£3900 mostly charges) or they will press ahead with the statutory demand, any help or advice greatly accepted. I have searched other posts but can not find answers to reference number cases not reconised etc and the deman being in one persons name when its for 2.

 

When you think your sorted in a debt management plan, things like this still cause sleepless nights

We also have no equity in our house and are other larger creditors are happy in the debt management plan.

Edited October 15, 2008 by BritishLion

[Ell-enn]

Hi there, have you made any payments or acknowledged the debt at any time since 2001?

[BritishLion]

Hi

 

We probably used the account until 2003 and then they were no help and hsbc kept paying themselves charges out of it. (which I now know we can claim back, not sure how when its ith a DCA). We are not aware of any contact since then, so I understand it could be statue barred, but we want to get it sorted.

 

Just worried about the statutory demand, but can't set it aisde as the court can not find a record of it, meaning its probably just a scare tactic?.

 

We are requesting (unsigned) a CCA now from mortimers/marin/phoenix

[Ell-enn]

Hi, statute barred is 6 years from last payment or acknowledgment (use of the account) - 5 years in Scotland.

[BritishLion]

bump, just trying to find out if anyone knows why the court ould have no knowledge of my hand delivered statutory demand from Mortimer/Marlin/Phoenix?

 

Thanks

[42man]

The court will have no record of it as yet.....you have 18 days from the date it was delivered to apply to get it set aside or they can petition for your bankruptcy.....this means filling out form 6.4 (set aside form) and 6.5 (affadavit).... you can find the forms here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

If it was hand delivered then they used a process server, so they might well be serious about this....

 

Can you give me a rough idea (not exact figure) of how much this is for ?

 

If it is a bank account / overdraft are there a number of excessive charges on the account ?

[42man]

Once you have filled out the forms, you have to take them to your local court (ring them first to ask if they handle bankruptcies/insolvencies) if they don't then they should be able to tell you the nearest court that does. Once the forms are filled out, you take them along to the court, ask them to 'swear in' your affadavit (usually this is free - solicitors will charge £5 to do this or central London courts charge £12)....

[42man]

I would try and ring the number on the demand and ask to speak to Richard Mathias to say that you will be opposing the demand as it is made up entirely of excessive charges + 8% compounded interest....if they won't put you through.....then read 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.

[BritishLion]

Hi

 

It was delviered about 16 days ago and it was only 2 days ago the court replied ith no record of it.

 

It was a joint bank account, but the stat deman is for one of us only (sureley thats not right either) there is a lot of excessive charges on it. Its for £3900. Our debmt management company spoke to them and they said they would stop the stat demand if we pay £3100 now or the full balance in 4 months time.

 

We have bigger debts in our debt management plan and all of them are happy as we have been paying them back for 2 years now, unsure why this one will not play ball, as they will not get anything if we go bankrupt or with a stat demand as we have no equity.

 

Thanks

[42man]

Then I would send this letter below (it will cost £10 unfortunately) but at least you can start the charge reclaiming process back from the original creditor - send it recorded delivery

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx (or multiple numbers if more than one account)

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, 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. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. 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 ORIGINAL CREDITOR.

4. 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.

5. 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).

6. Details of any collection charges 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.

7. 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.

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

9. 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.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

 

print but don't sign your name

 

Alternatively if this is HSBC and you still have online access then, print off the last 6 years statements and start reclaiming those charges + 8% compounded interest....you must....

[42man]

In my opinion you should never be forced into bankruptcy.....

 

please have a read of these too...

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/157201-statutory-demand-capquest-425-a.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/103839-cca-1st-credit-connaught.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/156970-omg-connaught-first-credit.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/161411-off-court-within-week.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/151149-help-pls-process-sd.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/135078-me-1st-credit-stat.html

[42man]

The court do not need to have a record of it.....this is the first stage of Bankruptcy....

[42man]

For your affadavit....I would write something along the lines of...

 

I totally dispute the debt

 

The debt is made up entirely of excessive charges

 

The alleged creditor has not given me any default notices in the prescribed manner, there are no notices of assignment, there are no statements for the duration of the account.

 

The demand is incorrect as this is a joint account.

 

If it was me I would ring up the number, tell them that you are disputing the whole amount due to it being made up entirely of excessive charges, and say that if they don't withdraw the demand, you will appear in court and claim your costs back

 

If they don't then you can also write in the affadavit that the creditor is aware of the dispute as you phoned them on XXXXXXX but they have declined to withdraw the dispute....whereby the judge will NOT be happy as judges generally do not like the Insolvency service used as a tool for debt collection on disputed debts....

 

If they do say they will withdraw, then you want written confirmation by 1st post tommorrow, otherwise you will apply for the set aside + your costs.

[BritishLion]

Thanks for all that info, very helpful indeed

[42man]

Also you might like to add in your affadavit....

 

I kindly request that the stautory demand be set aside and the court grant my costs as LITIGANT IN PERSON....

 

There is a costs form on here you can adapt - (have a read here) http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/156641-capquest-statutory-demand-help-4.html#post1765170

 

And you might like to add this (below) to the affadavit too....remember you must dispute the debt totally

 

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).

[palomino]

bump, just trying to find out if anyone knows why the court ould have no knowledge of my hand delivered statutory demand from Mortimer/Marlin/Phoenix?

 

Thanks

 

The court won't know about this until you tell them - why they are saying they don't have it is very strange. What is the reference number quoted on the SD - perhaps it's the claimant's own reference number?

 

In any case a Statutory Demand is sent directly to the defendant by the claimant - there is nothing filed at court so the court won't know about it.

If you apply to have the SD set aside then that is the first the court will know about it.

If you do not apply for the set aside and the claimant petitions for your bankruptcy then that is the first the court will know about it.

 

Otherwise the court will never know about it.

[confusedmum]

 

When you think your sorted in a debt management plan, things like this still cause sleepless nights

We also have no equity in our house and are other larger creditors are happy in the debt management plan.

 

I thought that too

 

I too am going through a similar thing with Marlin and their many names, I was with a DMC and have a DMP and they bought a debt from hfc and have decided they want the full amount and served a stat demand by post. It had no reference numbers on it only the marlin ref no.

 

I did my affidavit with the very brilliant advice and support of the CAGr'S, I was allowed to take it to my local court and had that sworn in and sent it special delivery to the insolvency section of the county court assign on the demand.

 

The court accepted my apllication and I have just been advised by the court that the judge will hear the case and I am awaiting a date for the hearing.

 

Marlin have a habit now it seems of responding to the CCA requests quoting that they do not have to supply you with it there is a letter http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/160750-any-dca-quoting-rankin.html#post1729202

 

kindly written by another CAG member that I used in response to them refusing to send it to me. I as yet don't have a reponse from them, but hope you find it useful if they do refuse.

 

Good luck

[rory32]

It was a joint bank account, but the stat deman is for one of us only (sureley thats not right either)

You have joint and several liability. What that means is that they can either come after both of you or just one of you. Although you shouldn't have any problem setting it aside as you are disputing the amount (SD's should only be ever issued where there is no dispute over the sum owed).

[BritishLion]

Hi guys

 

Are DMP people messed us about, and I only have today to post of special delivery a demand to set a side this statutory demand, is it something I can fill in myself as my other half is at work all day. I can not not any solicitors today to do this, our debt management company let us down as they said it was sorted and its not, and I need to get it there by monday. What Do i send, and can it all be filled in by myself?.

 

Or should I just not bother, as we are entering into a IVA in the next few weeks with our debt management company?

 

Thanks

 

Marc

[42man]

Lion.....I will have a look for you, can you bear with me ? i'll also merge this with your other thread....be patient...

[42man]

I totally dispute the debt

 

The debt is made up entirely of excessive charges

 

The alleged creditor has not given me any default notices in the prescribed manner, there are no notices of assignment, there are no statements for the duration of the account.

 

DEFAULT NOTICE

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the demand.
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which includes substantial penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

On the above information, I request that the judge set the demand aside and make kindly request the judge to pay my costs as litigant in person.

 

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 Lion have you tried to speak to the person named on the demand ? on the number provided ? to state that you will be setting the demand aside....if you have tried and you cant get through or they won't put you through add this 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.

 

 

 

 

[confusedmum]

Can you take it to the court yourself on monday?? that'll give you a little more time to get the paperwork filled in? Having your Affidavit sworn in only takes a few minutes (well mine did) so you could do that while your there.

[BritishLion]

Thanks 42man, should Ijust put that as a letter or dod I need to fill it in on a form?

 

Anone/confused mum. My other half can't get time off to take it in, its in her name but a joint debt. Can I get the affidavit signed in?

 

Thanks in advance you guys, its a great help.

[42man]

It should go on the affadavit 6.5 (you can find that here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

also fill out 6.4 too....remember you have to take them in to court and get the court staff to swear in the affadavit...

[BritishLion]

Thanks

 

How much do they charge to do that?

 

Also the stautory demand is in my fiancee name only, but it was a joint account. Am I ok to fill in those forms as me and then get the court to sign it? My fiancee can not make it to the court today or monday.

 

Thanks again, this place is a lifeline