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1st Credit Vs My Mum! Advice Appreciated - Stat. Demand


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Hi all

I have read loads of threads on here this evening but can not find the specific answer to my question so forgive me for starting a new thread about Statutory Demands.

 

My mum is in a bit of a tizz after receiving one of these on behalf of 1st Credit/Connaught today.

 

I don't know the entire ins and outs but I'll summarise what I do know and ask my question!

 

She has been on a DMP for 12 months with the CCCS. This debt was included as part of it - it was originally Citifinance and got passed on recently to 1st Credit- she passed on the references/account details to the CCCS to pay 1st credit and also spoke to 1st credit who agreed to her continued payments. She has continued paying CCCS believing that 1st credit were getting their money.

This is where I'm a bit vague but I think that 1st credit have sent a couple of letters saying payment has not been received, but CCCS say they have made the payments and will 'look into it' when my mum queries it.

 

Now she has received the Stat Demand from them. She will phone CCCS tomorrow but I want to help her file her application to have it set aside. I have the 6.4 and 6.5 forms but am not sure what to put in the defence affidavit.

 

Questions!

 

1. I wanted her to send a CCA request but she hasn't done it. Would I be right in thinking that it would be too late to do this now and file that the debt is in dispute as a defence?

 

2. I believe that as she has been paying them under and agreement and has proof of this, that would be enough defence anyway? Does anyone know if this is correct.

 

I'm fairly clear from lots of reading on here, how we go about applying for it to be set aside, but those questions need answering in my mind before I help her fill out the forms.

 

Any help would be much appreciated.

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Please have a read of this thread and get the CCA request sent out ASAP !!!

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/169354-1st-credit.html

 

And have a look here, so far to the best of my knowledge there isn't a stat demand that has been lost on here !!

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/

 

You can ask it to be set aside for a number of reasons....

 

Non production of a valid CCA, that has to contain the prescribed terms.

 

No statements for the duration of the agreement (excessive penalty charges !!)

 

No default notice in the prescribed form

 

Also if you try ringing Mr Silcock to tellh im that you will be defending the case....you will notice how you can't ever get through....try a few times and log the dates and times you called....

 

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.

Be aware that named people on accompanying letters are not part of the Statutory Demand - only those on the Demand itself are valid.

Important - make notes of dates/times you try to call the named person on the statutory demand, together with the name of the person that you spoke to and a note of what was said.

 

If you need any help please do ask !!

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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You have to submit forms 6.4 and 6.5 within 18 days of the date you received the demand....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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Thank you 42man.

I've read lots of the threads so I can see it is possible to defend them successfully. I'll get the CCA request send out with her tomorrow - I know the drill as I've sent several myself. Should she then put this on the affidavit? Should she put that the debt is disputed or they haven't proved the debt exists or something like that? I've got the forms 6.4 and 6.5 downloaded and am filling them in with her on Saturday.

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The defendant totally disputes the debt.

 

1) - The alleged creditor is in default of a request made under the Consumer Credit Act 1974 for a copy of the alleged credit agreement (see attached letter marked X and recorded deliver slip)

 

(a) -

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 First Credit Ltd. via guaranteed delivery on the (insert the date on the recorded delivery slip here Dave) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies one for the court and one for the opposing solicitor ) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

I believe there are no properly executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done already to avoid committing an offence under section 78 (1) of the Consumer Credit Act

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.”

 

2) - The alleged creditor has provided no statements for the duration of the agreement, it not being uncommon that debts can be made up entirely of excessive penalty charges

 

 

(a) - 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

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

3) - The alleged creditor has provided no default notices in the prescribed manner as laid out under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

(a) -

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

I have tried to contact the person named in the demand on 3 occasions, on each ocassion I was denied access to speak to this person to discuss this issue. This I believe to be an abuse of the process under rule 6.2 of the Insolvency Rules 1986 - I quote from

 

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

 

Furthermore I believe this demand is a frivolous attempt to frighten me into paying a debt which is clearly disputed. I quote from

 

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.

Have a good read and try and understand what is being said....I wouldn't even mention the repayment plan....1st Credit certainly won't as the judge will NOT be happy if they are sending out a stat demand and ignoring the OFT's rules.....BUT by saying what I have said means if they want to pursue, they have to PROVIDE all the paperwork....bear in mind all they have sent you is a letter saying YOU OWE US THIS - PAY UP....If they want to enforce a debt, then they should provide the relevant paperwork to back it up.....they have the temerity to issue a demand on the back of no paperwork, then they should not be abusing the Insolvency service (which judges do not like)....

 

If you need any more help or aren't sure let me know...

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

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I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

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Once you have studied the Insolvency Act and the Consumer Credit Act, you can fax/post your costs to the court to arrive 24 hours before the hearing...

 

for example 10 hours research into Insolvecny Law @ £9.25 per hour

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

Parking

Postage

Mileage @ 40p per mile....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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Thank you so much 42 man. That is superb! And obviously a million times better worded than anything I could have come up with! My mum will obviously need to spend lots of time reading this and learning about what it all means - so the expenses would only be fair ;)

 

I may be back with more questions when I've seen her tomorrow - but thank you so much in the meantime - you're wonderful :)

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No problem....just shout if you're not sure of anything....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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Hi

I'm back again with a query on this since speaking to my mum and looking at the paperwork.

 

She has spoken with the CCCS as her DMP is with them and they have told her to send a CCA request to 1st Credit. However they said nothing about getting the Stat Demand set aside and implied she shouldn't do anything on that score as it was probably just a threatogram.

The Stat Demand looks like a photocopied cut and paste job to me, but then I've never seen one before. It has no court stamp on it at all (should it??). My feeling is that we should still file a 6.4 and 6.5 form but am unsure given the CCCS didn't advise that... have they just overlooked it.?

 

Can anyone just confirm if we should just go ahead with the CCA and in the meantime file the forms to have the Stat Demand set aside?

 

Advice much appreciated.

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Your gut feeling is correct IMO, whether it is a threat or not, my opinion is that you should never ignore it (the final decision is up to you)....!! The more people who take these to court and show the judiciary that they are being used to enforce detbs which are being paid towards/disputed debts, the sooner this will be stopped. Judges in general do NOT like the insolvency service being abused like this. When this is all done, please report it to your local MP, TS and the OFT....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

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belt and braces is get it set aside. as soon as 1st get whiff you are going to get it set aside, they'll voluntarily withdraw it because they don't want the costs aganst and the publicity. An SD won't have a court stamp, 1st send these out willy-nilly for the price of a stamp to scare the ill-informed into paying. I was reading another thread recently where CCCS said 'do nothing' it beggars belief. Also have a read of a sticky 'SD's served by post'.

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Once again thank you 42 Man.

 

One final question for now (sorry!):

When a DCA files a Statutory Demand do they just have to fill out the 6.1 form and send it off to whoever they are sending it to or do they have to register it with a court at that point? The reason I ask is that my mum wasn't sure which court to file her defence papers with - we have located from one of your other links - which her local court is that deals with SDs but I'm guessing if the DCA has to 'file' the SD with a court it won't be the same court? The place on thr SD for them to write the name of the court with whom to file a claim to have it set aside is left blank!

 

Hope that makes sense...

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Absolutely no need to apologise...

 

Ring your local county court, and ask them if they handle bankruptcies, if they don't they should be able to tell you which is the closest that does....or check on here - The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service - Court Information and Addresses) is not available

 

It won't be registered at the court.....(BUT) it is easier to defend a stat demand than a bankruptcy petition. AND it has been alleged that some affadavits sworn by process servers are (ahem) incorrect !!....

 

As I said before the decision is yours whether or not to set aside, i'm just relating what I would do...

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

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