getting served with STATUTORY DEMAND tomorrow 22/10/08

[jenjuly82]

i have been notified that my partner is getting served with a statutory demand tomorrow even though original debt was in both our names but then it is his name on the mortage!!

 

i have phoned company to offer a weekly payment arrangment but they were not interested.

 

any ideas where i go from here as no way can we afford £8000 within 21 days nor afford to go bankrupt...

 

please help...!!!!

[42man]

May I ask what the debt is for ?

 

How do you know it is tommorrow ?

[jenjuly82]

we got a car on finance march 2005 returned it and terminated agreement, received numourous amounts of letters etc but never replyed since they have added nearly £4000 in original debt due to intereset etc.

 

received letter in post stating they are calling tomorrow at 6.30pm to serve demand.

[42man]

OK....I would send off the letter below to the original creditor asap....I presume this is Marlin ?....unfortunately the SAR below will cost you £10 (send postal orders) and send by recorded / guaranteed delivery...be advised Marlin read these forums too....with regard to the process server, ask a good reliable friend/neighbour to keep an eye on your door to see if somebody does actually turn up at that time (they could potentially be a witness to oppose a process servers affadavit, as some are alleged not to turn up).....however, If it was me in your position I wouldn't answer it the door...

 

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

[jenjuly82]

i have just done the above before reading your post, great minds read alike lol thanks..

just printing envelope now yes it is with marlin

[jenjuly82]

so do i send above to BRITISH CREDIT TRUST OR MARLIN FINANCIAL SERVICES?/?

[42man]

Send it to British Credit Trust....

[jenjuly82]

shell i phone british credit trust now as they were the people that supplied us with the car finance but im pretty sure all has been passed onto marlin financial service/?/

[palomino]

Bear in mind that you will have 18 days in which to apply for a set aside. The creditor is allowed up to 40 days to provide the information in response to a sar.

If you are hoping to rely on any information from the sar then you are going up a false trail.

[42man]

Absolutely right Palomino....however I fear that the agreement may be enforceable looking at the OP's other thread....and only other way to get information on defaults, notices of assignment, etc is either by asking the judge to make an order to supply the above info or through the SAR.....Jenjuly have you received any notices of assignment, or defaults ?

[jenjuly82]

Bear in mind that you will have 18 days in which to apply for a set aside. The creditor is allowed up to 40 days to provide the information in response to a S.A.R - (Subject Access Request).

If you are hoping to rely on any information from the S.A.R - (Subject Access Request) then you are going up a false trail.

 

i understand what your saying but info might come in handy later on down the line anyway!!

 

no i have not received any notices of assignments or defaults!!

[jenjuly82]

so when we receive the statutory order tonight,

 

what is the next stage to take??

[42man]

Don't answer the door at this stage....get a witness to watch your door to see if any one does actually come round...

[PGH7447]

Don't answer the door at this stage....get a witness to watch your door to see if any one does actually come round...

 

one who owns a large dog:)

[thunder5]

Hi did someone turn up to try and serve the SD?

[jenjuly82]

yes they did serve the SD we didnt answer the door, but he posted it throw letter box.

 

surprizingly they are demanding £4523.36 so they have taken off all the interested they tried claoming in the original contact letters.

but now im so confused not sure what to do? as there is no way we can pay debt within 21 days nor do i think we got grounds to set aside SD!!

i did phone up marlin financial services to see if we could copme to an agreement of installments but he wasnt interested.

 

what does "the creditor demands that you pay the above debt or secure or compound for it to the creditor's satisfaction" mean??

 

were looking at paying £25 a week and if we need to then we would secure house on debt.

 

but i cant see they would start a bankruptcy petiton to claim £4523

 

please help any advice appreciated...

[MEL25]

hi jenjuly82

I am in the same position as you right now. i started a thread on this forum last week as I too do not know what to do. I was under the impression though that for an sd to be enforceable it had to be actually handed to you not just posted through the letter box?

[42man]

A process server will attempt to serve the demand on you.....if they have made a reasonable effort to serve it on you without success, then the process server would have to issue an affadavit with the court to say that he/she has made every effort to serve the demand.....e.g. has visited the house twice but nobody answered....then a judge if he/she has decided that a reasonable effort has been made to serve it, then he/she would read the affadavit and say 'ok they have tried to serve it personally without success, I will allow 'substituted' service which means 1st class through the door/ or dropped through the letterbox.........

[jenjuly82]

so shell i try and make contact and offer £25 a week or ignore SD that was posted throw letter box ???

[42man]

I would be sending out a CCA request if it is a credit product (i.e. either a loan, hp or credit card/credit account - any product governed by the consumer credit act) in the first instance....and also a S.A.R - (Subject Access Request) to the original creditor too...

 

Mel send this out by recorded delivery ASAP....enclose a £1 postal order and don't hand sign it - this Consumer Credit Agreement request needs to be sent to whoever owns the debt either the debt collection agency or the original creditor (if it hasn't been passed to a debt collection agency yet)

 

DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY OR ANY COMPANY YOU CLAIM TO REPRESENT

 

Re: Account no: xxxxxxxx

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77(6) will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

This is the S.A.R - (Subject Access Request) request....which you should send to make sure they have all the paperwork in order - this costs £10 again send by recorded delivery and don't hand sign.....

 

This is only a request for information and is governed by the Data Protection Act and not the Consumer Credit Act 1974....but this is used to find out any excess charges, compliant defaults etc....

 

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

[42man]

Personally I would never ignore a stat demand....if they are using a process server then they will probably be serious....

[jenjuly82]

hi 42MAN, i have done the above i already have a copy of the original agreement plus terms and conditions. so a cca request wouldnt be needed i sent a sar request last week just waiting for reply.

but as this can take up to 40 days im abit confused what i should be doing now!

im not sure whether to ignore the SD that was posted throw letter box or write the acting solicitor for mortimer clarke who is serving SD and offer £25 a week and if need be secure house on debt.

hope that makes sence!!

what is the next process if the SD is ignored and we dont ask for it to be set aside when the time is up what is the next actions by the solicitor?

what is the likely hood of the putting in a petition of bankruptcy is we do make an offer to pay by weekly installments surely they cant refuse to take it???

[jenjuly82]

letter does state they used a process server to deliver SD.

even though we ignored door he still posted it throw letter box!!

oh this is gettying too serious im so confused...

[42man]

At this point in time....you could possibly set aside due to

 

Non production of a valid default notice

Non production of statements for the duration of the account (excessive charges)

Non production of a notice of assignment from the alleged original creditor (or from Marlin ?)

 

Have you tried calling the name on the stat demand ?

 

remember 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

[42man]

There is case law for defaults and excessive charges -

 

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, 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