what to do with a statutory demand

[MEL25]

hi I hope someone can help me. I received a sd yesterday, no stamp on the envelope so someone must have put it through the letterbox, its dated the 13th oct so doesn't give me much time to deal with it. the trouble is i don't know what to do. what is "set aside"? I don't deny i owe this money, I have been corresponding with the debt collector via email. he knows i am trying to remortgage and then I will be able to pay up. the debt is around £6 with all interest and charges however they have already agreed to accept £4k which is the original amount owed. I have been paying £100 a month, so far I have paid back £400

please help as I did not sleep a wink last night and I feel sick

[42man]

Hi Mel....firstly try and relax as best as you can. May I ask a few questions please ?

 

Can you tell us what it says (but don't be too specific with the figures)..

 

Who are the debt collection agency ?

[MEL25]

The collection agency is in the netherlands. I used to have a childrenswear shop, and this is for stock that i received over 2 years ago. I sent payment for this stock although they never cashed the cheques. At that time I was in bury your head mode as the shop wasn't doing well. I only heard from this firm called bierens lawyers in april/may of this year.

i'm at work now and I don't want to get it out here but it basically lists the unpaid invoices and the interest and then says about bankruptcy or setting aside. i can be more specific when i'm at home

[MEL25]

it says it is a sd under section 268 (1)of the insolvency act1986. debt for liquidated sum payable immdediately.

it basically says I should apply to have it set aside within 18 days from its service on you (it appeared thru my letter box no stamp last thurs 23rd although its dated 13th)

it says if i don't apply to have it set aside or deal with it as set out in the notes within 21 days i could be made bankrupt.

then it basically says that the creditor demands i pay the sum or secure it or compound for it to the creditors satisfaction.

 

however, was this actually "served on me" if it was hand delivered through my letter box. where is the proof?

[jenjuly82]

i am the same situation but with an old car finance i stupidly took out in 2005.

[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.........

[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 SAR 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 SAR 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]

As for the CCA request you can see why it is used here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164270-debt-wescot-lowell-unsecured.html

[MEL25]

as this is a debt for stock for a retail business would it be covered by CCA though?

and in paying £100 a month i think i may have already admitted to the debt.

what would happen if i ignored this SD?

[PGH7447]

if you ignore it then they can apply for bankruptcy on you

[42man]

Was nothing signed ? No credit agreement ? If you ignored the demand they could petition for bankruptcy...

[jenjuly82]

but if you offer to pay debt off by installments weekly/monthly surely a judge is not going to agree to make you bankrupt????

[MEL25]

i'm confused I don't know what to do

1)the sd was put through the letter box with no prior warning (i thought they had to arrange to meet you?) how do they know that I actually got it, its dated the 13/10 but i didn't receive till 23/10 so what date do i take the 18 days from?

2)i'm not disputing the debt. I have been paying £100 a month, so can I still ask for a cca even though its for stock for a shop and i have been paying it?

3)I would be willing to secure the debt against my house if it would mean that they wouldn't make me bankrupt but i think interest of £2k on a £4k debt is a bit steep. could I put it to them that I am willing to secure the original debt on my property but not the interest?

4)would a judge really make me bankrupt if he saw that i had been making regular payments and I was willing to secure against my house?

 

If i defaulted on my mortgage and my bills this month I could pay most of this -that's the crazy thing - do I rob peter to pay paul? we have been trying to remortgage in which case I would have had some spare cash to pay this, I have told them this but they are obviously not prepared to wait any more however if i secure against the house or miss this months payment i won't get remortgaged anyway

please could you advise step by step what you would do?

[surfaceagentx20]

The following is taken from the Practice Direction relating to Insolvency Proceedings which came into effect on 26 April 1999. The quoted parts deal with the provisions concerned with substituted service. The provisions applicable to the substituted service of a SD are the same as those applicable for a petition.

 

11.3 In all cases where substituted service is effected, the creditor must have taken all those steps which would justify the Court making an order for substituted service of a petition. The steps to be taken to obtain an order for substituted service of a petition are set out below. Failure to comply with these requirements may result in the Court declining to file the petition: Insolvency Rule 6.11(9).

 

PETITIONS

11.4 In most cases, evidence of the following steps will suffice to justify an order for substituted service:

(1) One personal call at the residence and place of business of the debtor where both are known or at either of such places as is known. Where it is known that the debtor has more than one residential or business address, personal calls should be made at all the addresses.

(2) Should the creditor fail to effect service, a first class prepaid letter should be written to the debtor referring to the call(s), the purpose of the same and the failure to meet with the debtor, adding that a further call will be made for the same purpose on the day of 19 at hours at (place). At least two business days notice should be given of the appointment and copies of the letter sent to all known addresses of the debtor. The appointment letter should also state that

(a) in the event of the time and place not being convenient, the debtor is to name some other time and place reasonably convenient for the purpose;

(b) (Statutory Demands) if the debtor fails to keep the appointment the creditor proposes to serve the debtor by [advertisement] [insertion through a letter box] or as the case may be, and that, in the event of a bankruptcy petition being presented, the Court will be asked to treat such service as service of the demand on the debtor;

© (Petitions) if the debtor fails to keep the appointment, application will be made to the Court for an order for substituted service either by advertisement, or in such other manner as the Court may think fit.

 

(3) In attending any appointment made by letter, inquiry should be made as to whether the debtor has received all letters left for him. If the debtor is away, inquiry should also be made as to whether or not letters are being forwarded to an address within the jurisdiction (England and Wales) or elsewhere.

 

(4) If the debtor is represented by a Solicitor, an attempt should be made to arrange an appointment for personal service through such Solicitor. The Insolvency Rules enable a Solicitor to accept service of a statutory demand on behalf of his client but there is no similar provision in respect of service of a bankruptcy petition.

 

(5) The written evidence filed pursuant to Insolvency Rule 6.11 should deal with all the above matters including all relevant facts as to the debtor's whereabouts and whether the appointment letter(s) have been returned.

 

11.5 Where the Court makes an order for service by first class ordinary post, the order will normally provide that service be deemed to be effected on the seventh day after posting. The same method of calculating service may be applied to calculating the date of service of a statutory demand.

 

Have you received a letter of the kind mentioned in 11.4(2)?

 

If you have, the creditor will be serving the SD in accordance with the Rules and Practice Direction.

 

If not, then since a letter of the kind mentioned in 11.4(2) would have to be produced to the court in support of any later contention that service of the SD was effective and compliant with the Rules and the Practice Direction, there is an arguable case for saying, should the need ever arise, that service of the SD by insertion through your letter box was ineffective.

 

I would apply to set this SD aside if you can show grounds but I would be wary of making an application if you can not.

 

x20

[MEL25]

i received a letter from them telling me if I didn't pay up they would issue a SD.

what grounds could i have for setting this aside, and what actually does that mean?

[surfaceagentx20]

Saying in a letter that a SD will be served is not sufficient to meet the requirements of Prctice Direction 11.4(2).

 

Insolvency Rule 6.5(4) says the grounds on which a court may set aside (ie cancel) a statutory demand are:

 

(a) the debtor appears to have a counterclaim, set-off or cross demand which equals or

exceeds the amount of the debt or debts specified in the statutory demand; or

(b) the debt is disputed on grounds which appear to the court to be substantial; or

© it appears that the creditor holds some security in respect of the debt claimed by the demand, and either Rule 6.1(5) is not complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.

 

I take it the debt exceeds £750.00?

 

x20

[MEL25]

yes it is more than £750. It's £4k with interest they are adding £6k

what would you be inclined to do in this situation? as I said earlier I can offer to secure it against my house, would you advise this? I obviously cannot be made bankrupt, I work in banking as a contractor and would never get another job, apart from anything else.

[MEL25]

I have today emailed the solicitors dealing with this to tell them I had paid another £100 and would continue to do so until I could pay more. I offered my house as security if it would make their clients feel better . I received a email back saying I had been issued with an sd and would be made bankrupt in 21 days if i did not pay this amount. I replied that I had not recived any correspondance from them other than these emails, and asked for their clients no. to try to negotiate a settlement or at least a payment plan. he has now sent me via email a copy of the sd. what do I do now?

I cannot pay the full amount but I cannot be made bankrupt and I am trying so hard to pay this

[postggj]

ime asking this as i have little knowledge in this area and its for future ref

 

the dca is in holland

 

has this dca got any legal right to do this as this is covered by uk law

[MEL25]

I have no idea. can anyone answer that?

[MEL25]

ha ha! he has now come back to me saying that his clients are prepared to accept £xxx to settle the full balance first payment starting the 24th nov. does anyone thionk this has been a bluff as I do not think the sd was served correctly and maybe they are trying to frighten me. even so I cannot afford the sum he is stating. do you think I should phone the company the debt is with and see if I can't negotiste something better with them?

[PGH7447]

why not

[MEL25]

i'm just so naive with all this , and these people do have the ability to scare the life out of you!

[PGH7447]

Yep they used to scare me then I found this place:D - Now I deal with them as they deal with me