Served Statutory Demand from a DCA for HSBC Loan

[Skint2008]

Hi

I have been personally served with a stat demand from a DCA who have a debt for HSBC as well as two others I had with them

, I really dont want to go bankrupt but I dont see how its fair that this company who I had no dealings with can do this to me

? I had arrangements with HSBC put they passed them on anyway.

I have CCA'd them but I want to put my application to set aside the demand and dont know what to put?

Any help would be appreciated

[42man]

OK first try and relax if you can...

 

What is the debt for ?

When was the CCA request sent ?

How was the statutory demand delivered ?

When did you last make a payment ?

[berrylover]

I copied and pasted this from some advice from 42man (Hope you don't mind 42man). Should be of help.

 

You have 18 days from the date of the receipt of the demand to submit forms 6.4 and 6.5 into the courts you will find them here -

 

Getting Statutory Demand Set Aside**WON IN COURT**

 

you need to dispute the debt substantially, ring up your local county courts and find out if they handle bankruptices / insolvencies, if they don't they should be able to tell you the nearest court that does.

 

When you take your forms down to the court, you must ask them to 'swear' in the affadavit, which is usually free, (solicitors will usually charge £5 to do this) and I believe the central London courts charge £12 !!)

 

Please have a read of these too....

 

OMG Connaught/First credit SD**WON-Setaside plus costs**

 

CCA 1st Credit / Connaught **SET ASIDE WITH COSTS**

 

Off to court within the week for a set aside on SD - **WON** PLUS COSTS AWARDED

 

Me v 1st Credit (Stat Demand)

 

The courts in the majority are against the Insolvency service being used as a tool for debt collection....!! (as you will read in the threads above)....

[Skint2008]

Debt is for a Loan I think its been so long I get the three muddled

 

CCA was sent today

 

A man came to my house to give me the stat demand

 

I last made a payment 6 months ago

[tiglet]

If it was personally served, I would say that they are more serious than usual about making you bankrupt if this has been personally served.

 

When did you send the CCA request?

How much (approx) do you owe?

How much of this is made of charges etc?

Is there any PPI on the account?

If so, did you ask for this?

Do you own your own property or have a car or other assests?

 

We really need as much information as possible so taht we can see if tehre are grounds for a set-aside.

[42man]

OK, have a read through some of the threads above, this will give you some understanding...keep a sharp eye on the timescales (18 days to submit your forms)....if you need any help, please shout...

[Skint2008]

cca sent today, on this account I owe 6k

 

fairly sure a big chunk of this is charges

 

No PPI

 

I own my own property

 

Really appreciate this guys

[42man]

As this seems to be a serious attempt, it might be worth sending this to HSBC too....unfortunately this will cost you £10, and send it recorded delivery....(and don't hand sign it).....they have to send you this info in 40 days....if you read the letter you will see what you are requesting, and by doing this you will know exactly where you stand...

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

 

[tiglet]

As this is subject to a form of legal action, couldn't OP use CPR to get this quicker 42man?

[42man]

CPR only applies to Civil rules, Stat demands are governed by the Insolvency rules.....the only way you could do this is to get the judge at a hearing to order it, (this could be a stopping point unless you argue why, and even then you may not get a judge to agree) but it could mean adjournments and drag on and be potentially costly...

[tiglet]

Thanks for that - I wasn't sure so thought I would ask!

[42man]

Anytime Tigs !!!

[Skint2008]

Thanks for your help everyone I've sent the SAR request off, got to make my application to set aside now because I want to do it with plenty of time to spare, anyone got some suggestions I should put in?

[42man]

I would submit it on the 17th day (or slightly before)....after receiving it...

 

When were you given the demand ?

[Skint2008]

14th

[42man]

ok it is up to you but if it was me, I would wait until 16 days after this date to submit....

I would be putting on the affadavit...

I totally dispute the claim.

The alleged creditor has not provided a credit agreement with the prescribed terms. -

Under section 78 (1) of the Consumer Credit Act A formal written request for any true copies of signed consumer credit agreements was sent to XXXXX via guaranteed delivery on the (insert the date on the recorded delivery slip here Skint) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – to date they have not sent any copies of any Consumer Credit Agreements and they fell into default of that request under section 78 (1) of the Consumer Credit Act on the (12+2 working days after your request was sent)

The alleged creditor has not provided any default notices in the correct manner

The alleged creditor has not provided any statements for the duration of the account. (it not being uncommon for debts to be made up entirely of excessive penalty charges)

The alleged creditor has not provided any notices of assignment

SECTION 78 (1) CONSUMER CREDIT ACT 1974

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

The Consumer Credit Act in section 78(6) States that

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

8.2 What if prescribed terms are missing or incorrect?

 s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

• As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
  ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 “Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 “The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

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 petition.

• 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 is likely to include penalty charges, (it not being uncommon that some debts are made up entirely of excessive 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

Also Jo....try ringing the contact on the demand.....if they don't put you through then also write...

Despite trying to telephone the contact on the demand, I have attempted to speak to the person named in the demand but am being refused access. This I believe to be an abuse of the process as - 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.

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

 I therefore request that the judge set aside the demand and gracefully request that it is ordered that the alleged claimant pays 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).

For the costs aspect you need to fax / send them so they arrive 24 hours before the hearing (if it gets to a hearing)......(ring the courts every week just to check that any post the courts have sent you hasn't gone missing !!!)....

You can use this form that Surfaceagentx20 pointed to here - but make sure it says LITIGANT IN PERSON COSTS - Capquest Statutory demand help Urgent

You could say for example...

LITIGANT IN PERSON COSTS

10 hours research into Insolvency Laws @ £9.25 per hour

10 hours research into the Consumer Credit Act 1974 @ £9.25 per hour

Postage

Parking

Mileage at 40p per mile

[Skint2008]

Brilliant thanks, I wouldnt like my chances of sitting in court and trying to explain some of that though!

[42man]

Have a good read through and try and understand what is being said....who issued the demand by the way ?