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Stat Demand Bermans


Iannun
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Exactly as I thought, and in those circumstances I hope you are able to follow the points I am making about consideration?

 

As for your draft, here are my comments:

 

Para 2

The demand is made up of a considerable sum in cancellation charges which are disputed.

 

Specify the amount of the cancellation charges in dispute and state why they are disputed.

 

The Creditor is negotiating with debtors

 

Are you sure it is the creditor so named in the SD or BFYL? If the creditor, do you know by what right BFSL has assumed such a role?

 

Para 3

clause 7.5 and 15.4 of the Standard Conditions to the Factoring Agreement

You're on your own on that score since as you will appreciate no one on CAG knows what is said anywhere in the Factoring Agremeent save that the factor is BFYL and not the creditor.

 

under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999

 

Drop these parts. Inequality of bargaining power is unlikely and the agreement in question is not a consumer contract

 

Para 4

Good

 

Para 5

The sum claimed in wrong as payments have been made on the account

State what has been paid and what you believe correctly represents the amount owing by XYZ.

 

Para 6

Good

 

x20

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Again thank you for your assistance. I need to travel to Coventry today to file this, further information for the application would be helpful.

 

1. The Statutory demand is defective because it does not show the appropriate County Court to which an application to set aside should be made. (To be taken out - the court named on the demand does not deal with it, the nearest one that does is Coventry)

 

2. The demand is made up of a considerable sum in cancellation charges which are disputed wholly. The Creditor is negotiating with debtors to settle the outstanding balance fully and the issuing of a Statutory demand is an abuse of process (An extract of an email from Bermans to me. They are currently looking at an agreement for £44K) Unless you are in a position to negotiate a settlement of a higher sum by Wednesday 26 November 2008 then our client will look to negotiate a settlement directly with XYZ and their advisors)

 

3. A copy of the paragrapghs refered to in the stat demand

 

 

 

bibbyterms-1.jpg

 

15.3 mentions insolvency and ceasing to trade. The company has ceased to trade only after Bibby pulled the funding. At the time the company was trading OK. So the cancellation charges I thought can only be levied if we breached either clause. As we had not, then the charges can be applied (I thought)

4. The Creditor is in breach of their written offer insofar as to pursuing other debtors first. The Creditor has given a written undertaking and is in negotiation with a debtor(s) to settle the disputed sum in full. The Creditor is in breach of a Promissory estoppel, {Justice Denning; Central London Property Trust Ltd v. High Trees House Ltd [1947]}

 

5. The sum claimed in wrong as payments have been made on the account. The Creditor has so far refused to give a full itemised statement showing transactions which would give the applicant access to the sums that has on good authority have been paid. The Applicant has been told by Bibby Factoring Yorkshire Limited that less than £42,000.00 was owed on the account as of 17th October 2008 and since then further payments have been made by the company’s debtors.

 

6. Guarantee is unenforceable on the grounds that the formation of it did not provide for any benefit to be conferred by Bibby Financial Services Limited on me and/or any third party in return for the guarantee promise I gave. Furthermore, the guarantee is to Bibby Factors Yorkshire Limited, not Bibby Financial Services Limited. Bibby Financial Services Limited are not entitled to receive payment for those services, against Bibby Factors Yorkshire Limited {Tweddle v Atkinson (1861) 1 B&S 393}

 

 

Just a bit of help on 2,3 & 5 if anyone could please?

 

Thanks

Edited by Iannun
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I'm not sure of what sort of further help you were looking for. Also, the document you posted is tiny and difficult to read. I can't see a clause identified as 15.3.

 

In any case, if Bibby pulled the funding, ie BFYL I presume, to the extent that the pulling of funding contributed to or directly caused the collapse of XYZ trading, perhaps then that action was an action in breach of the agreement between BfYL and XYZ? Perhaps then a further ground of defence might run along the lines that if BFSL are entitled to look to you for payment, that entitlement is dependent upon BFYL having some proprietory interest in the money payable by you as guarantor to BFSL of the debts owing by XYZ to BFYL. As such and as guarantor, it is properly arguable in my view that you are entitled in equity to adopt in a defence to a claim brought against you by BFSL, such defences as might be available to XYZ in a claim brought against them by BFYL. One such defence XYZ might adopt would be the breach by the pulling of funding, if the pulling of funding did inded constitute a breach. May be XYZ's lawyers are looking at something along those lines and if you have any clout with those lawyers, may be you ought to ask them.

 

x20

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Again, thanks for your help.

 

Went to the court and filed the following

 

The Statutory demand is defective because it does not show the appropriate County Court to which an application to set aside should be made.

2. The demand is made up of a considerable sum in cancellation charges which are disputed wholly. BFYL is negotiating with debtors to settle the outstanding balance fully and the issuing of a statutory demand is an abuse of process.

3. The Creditor calculates the sum owed including termination charges referring to clause 7.5, 15.3 and 15.4 of the Standard Conditions to the Factoring Agreement. This clause refers to a repudiation of the agreement by the company. No such repudiation or termination from the company’s side has occurred, therefore cancellation charges are not enforceable.

4. The Creditor is in breach of their written offer insofar as to pursuing other debtors first. The Creditor has given a written undertaking and is in negotiation with a debtor(s) to settle the disputed sum in full. The Creditor is in breach of a Promissory estoppel, {Justice Denning; Central London Property Trust Ltd v. High Trees House Ltd [1947]}

5. The sum claimed in wrong as payments have been made on the account. The Creditor has so far refused to give a full itemised statement showing transactions which would give the applicant access to the sums that we have on good authority have been paid. The Applicant has been told by Bibby Factoring Yorkshire Limited that less than £42,000.00 was owed on the account as of 17th October 2008 and since then further payments have been made by the company’s debtors.

 

6. Guarantee is unenforceable on the grounds that the formation of it did not provide for any benefit to be conferred by Bibby Financial Services Limited on me and/or any third party in return for the guarantee promise I gave. Furthermore, the guarantee is to Bibby Factors Yorkshire Limited, not Bibby Financial Services Limited. Bibby Financial Services Limited are not entitled to receive payment for those services, against Bibby Factors Yorkshire Limited { Tweddle v Atkinson (1861) 1 B&S 393}

 

 

The staff were very helpful, took the paperwork away and checked it. They popped back a few minutes later and said that it had been lodged and I would hear something in the next few days. She did say that the court was generally stamping on people who issue demands with the wrong details on, so in her experience the judges set them aside on those grounds firstly as the Creditors who are solicitors should know better.

 

I will keep posting on event's as they happen.

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  • 1 month later...

I sent the paperwork off to the court and had a letter telling me that if a judge considers the defense sufficient he will either set it aside or give a hearing date. Still waiting for that.

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Hi

I am very sorry for hijacking this thread, but i to today havr received a letter from bermans.

I am a member of the site but have never had any deaings with this firm before i wondered what they are like.

I had a new car from audi which had numerous faults, although i was behind with the payments i rejected the car as it kept on breaking down. They say that i substantially used the vehicle which i did not after the first breakdown, and then 3 hours after collecting the vehicle from the dealership it happened again blocking an exit to a busy car park. They also say that that by rejecting the vehicle even if i was correct would only entitle me to the cost of a hire car.

Please can anyone help.

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  • 1 month later...

Bermans have withdrawn their application, they have asked that the hearing is vacated (what ever that means) and no costs are awarded.

 

The court have advised me that the hearing will still go ahead.

 

Should I attend?

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  • 4 months later...

Ok, a quick update and appeal for help. I had the stat demand set aside in March. Bibby then appointed a debt collector to collect the debt from the old customers. They did in a fashion. They collected just over £19,000 or rather accepted full and final settlement for that amount from the main debtor. I objected to this with the DCA and was told that they were under instructions from Bibby.

 

I tried to contact Bermans on three occasions and the secretary said the solicitor concerned was busy. I tried to contact Bibby, but they said the matter was with Bermans.

 

Bermans issued another stat demand for the balance on 5th May. Here's where it gets complicated.

 

I had an accident and a back operation a while ago, which failed. My doctor has me on a mixture of drugs, one being Morphine twice a day. I have had very bad month or so and when on my tablets, find myself on planet zog. I have had two good days in the period between today and the 5th May. I tried during this period to contact Bermans pointing out that they had accepted a lesser amount that the sum demanded in full and final settlement, without my consent, if I am right, to my detriment. The solicitor was again too busy.

 

Tonight, I had a smiling agent from Bibby announce to the street and the Sky engineer that was at my house, that he was presenting me with a bankruptcy date (6th Aug). I disputed the debt from the start and every letter stated that on the top.

 

What do or can I do? Do I roll over and let it happen, losing the house (negative equity, mortgage arrears), plus a good chance of the wife and kids going over it. Or can I do something other than jacking it all in?

 

I am on Income support and DLA receipt because of my condition.

 

Any help from anyone would be great. Please.

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  • 2 months later...

Just a quick note, to say I won!!!!!!!

 

Went to court with the help of a really good solicitor in Coventry (Mel from Smith and Wells), who manged to defeat their claim as they did not prove sufficient "business efficacy" when collecting in the book debts.

 

To the rest of you out there with the same problem, don't give up!

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