Bankruptcy Petition - Help Needed Please

[42man]

Of course they are bound to say all this as they are representing their client......

 

As case law has stated it makes no difference if the money was owed in Wilson vs FCT, it wasn't disputed that an amount was owed, it just wasn't enforceable.

 

The fact that there are a substantial amount of penalty charges that have been added to the account too.

 

Have you ever seen any default notices ? were they in the correct manner ?

 

The fact that there were penalty charges on the account means the default notices were wrong anyway...

 

I would also ring the court and get the witness statement and affadavit of the process server to scrutinise this. There should be an affadavit made by the process server......for the demand/BR, if there isn't one then refer to the case at the bottom of the page !!!! AND if it hasn't been filed in court immediately after service then it is an abuse of the process.....

 

Typical of SD, they avoided mentioning the other credit agreements, just the charge card which isn't covered by the CCA74...of course they mention 'delaying an order'.....in point 9...

 

I have never ever seen a statutory demand for this claim and would state that there are sufficient doubts that the process has not been carried out to the law, neither have I had anything 'served' upon me.

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. The rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

[Viscount Stair]

OK.

 

I think that you need to serve a follow up Witness Statement replying to that.

 

There are three lines of attack you have to address:

 

1. They are saying you did get the Stat Demand and the Petition and that you have had adequate notice and time. You have to explain why that is either not true or irrelevant.

 

2. They are saying that even if they are wrong about the credit card you owe more than £750 on the charge card, so can press ahead regardless. You have to hammer home that, at the very least, there is a real dispute in relation to the credit card (full stop) and in relation to the amount due on the charge card (eg collection charges, other charges, penalty interest, etc). However, you are going to have to be able to show that there is not a "core" about which you do not have any argument of £750 or more. Since you are still waiting for the information you can argue that without that information you have no way of knowing whether such a "core" exists but you might just be postponing the inevitable. (Yes, it stinks but that's how it is, not how it ought to be.) You might have to make a best guess about whether there is £750 or more on the charge card that is actual debt rather than ramping.

 

3. They are trying to imply that if you owe lots of money to lots of people that is grounds for bankruptcy even though no-one else has joined them in bringing the petition (which they could have done but didn't). That is pure prejudice and should be swatted away with the contempt it deserves.

 

You are not going to get the statement ready and served this afternoon, so I'd suggest we work on it over the weekend (probably via PM) to serve first thing on Monday.

 

In the meantime, fax the solicitors telling them that you are in receipt of their witness statement and that you are presently considering it.

 

Have a think and PM me later.

[42man]

Ring the court and ask them if there has been an affadavit delivered by a process server.....!! Also ask them when substituted service was granted....

[Traderx]

trting to get through now

[Viscount Stair]

OK: one up post and one down one!

 

42 has better experience than I do, so I would defer to him on tactics and he knows the Rules and the case law in this area better than I do.

 

However, unless he says otherwise, I don't think what I've said cuts across what he has said.

 

Let's all have a think. I've got to catch the post for my own battles but I will back later.

[Traderx]

yes there was a affidavit by process server, filed before the court after service. dated 14/7/08

 

substituted service granted on 11/11/08

[Traderx]

Of course they are bound to say all this as they are representing their client......

 

As case law has stated it makes no difference if the money was owed in Wilson vs FCT, it wasn't disputed that an amount was owed, it just wasn't enforceable.

 

The fact that there are a substantial amount of penalty charges that have been added to the account too.

 

Have you ever seen any default notices ? were they in the correct manner ?

 

The fact that there were penalty charges on the account means the default notices were wrong anyway...

 

I would also ring the court and get the witness statement and affadavit of the process server to scrutinise this. There should be an affadavit made by the process server......for the demand/BR, if there isn't one then refer to the case at the bottom of the page !!!! AND if it hasn't been filed in court immediately after service then it is an abuse of the process.....

 

Typical of SD, they avoided mentioning the other credit agreements, just the charge card which isn't covered by the CCA74...of course they mention 'delaying an order'.....in point 9...

 

I have never ever seen a statutory demand for this claim and would state that there are sufficient doubts that the process has not been carried out to the law, neither have I had anything 'served' upon me.

 

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. The rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

 

 

I am guessing i have to move on from the abuse of process argument..........

 

I havent seen any default notices.

 

As far aspenalty charges are concerned i have assumed that there are plenty, esp with the amount they are claiming. I havent received back the SAR stuff yet.

 

They have filed a statement of account but only back to feb 08 In the BP they quote sum due at 14th June 2007 (i assume when they defaulted the account) + interest of £xx.xx per day from 28 jan 08 - 2 july 08

 

 

I will scan and post the statement of accounts now

[Traderx]

[Traderx]

[Traderx]

the court said i cant file another statement as the file is going before the registrar on monday.

[Traderx]

They also filed this. It was the first time i called the solicitors after receiving a letter from the land registry.

 

[Traderx]

If the judge rejects everything else can i argue that their repayment terms 1/2 now then 3 monthly instalments are unreasonable.

 

also they are implying that because i cant pay my debts immediately i am insolvent.....well i wonder how many people could pay their debts immediately.

[Traderx]

alleged debts

[Traderx]

they have supplied t&c's for both cards (on seperate pieces of paper of course)

 

I still maintain they have produced no valid agreement between myself and them even the charge card, all they have produced is the invitation.

 

Surely to be bound to the terms of the charge card i would have to sign the T&C's in much the same as a credit card?!"

[Traderx]

here is a whatif

 

what if the judge accepts the credit card unenforcabilty argument. but agrees the charge card is owing.....would the current BP be valid or would they need to do another for the new amount?

[Traderx]

They could have put any number down for what they claim I owe

[banker_rhymes_with]

If they have not issued a valid Default Notice on the Credit Card and then Terminated, that could give rise for a Claim against them for Unlawful Rescission of Contract.

 

They above also loses them any of the benefits of s87, so all they can claim for the Credit Card is the Arrears...assuming they even have an Agreement that is!

 

OK, that could reduce the Card Debt by 90% maybe, and you could then attack them back on the Counter-Claim issue...pick a figure for the damage this has done to you Financial Reputation.

 

Put that Counter-Claim amount against what is owed on the Credit Card Arrears (if any), plus the Charge Card Debt, and make sure the Counter-Claim results in them owing you and/or an overall Debt that is under £750!

 

It could be enough to thwart their BP?

 

Worth looking at anyway. If the Credit Card is the main Debt and they are almost admitting it can be ignored to emphasise the Charge Card...then hit back that the Credit Card issue is looking more like you have a Claim against Amex. The total for which could dwarf their actual claim and throw doubt on you owing anything at all.

 

Cheers,

BRW

Edited January 23, 2009 by banker_rhymes_with
Spelling

[Traderx]

I did put the following in my opposition

 

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
  

They havent mentioned default notices in their statement....................

[Viscount Stair]

As regards what the court said, strictly speaking the court is right and it is a very long time since my salad days when time limits went hang and two more rounds of affidavits after the deadline for serving evidence was about par for the course. 42 has more up to date practical experience and can say whether or not such antics still go on.

 

What I would try to do is to fax another statement first thing on Monday morning to the court and to the solicitors and cover it with a letter asking politely that the additional witness statement be put before the registrar on the basis that there are points in the Amex statement that need to be addressed in the interests of fairness and completeness. Then take the original and 2 more copies to the hearing (1 for Amex and 1 for the registrar).

 

I agree that they are putting the credit card to one side in their statement but I am assuming that was purely tactical on the basis that the charge card alone is more than £750 as stated. That could be a blunder on their part if the charge card debt can be got below £750 or a plausible looking counterclaim can be got up to bring it below that figure.

 

Another piece of pure prejudice that can be swatted away is the bit about Amex making you bankrupt. It would be very convenient if that were the only direct quote from you in their notes of the conversation.

 

Also, whilst I have to be careful about putting words into your mouth, there are two possible ways of reading that phrase: literal or figurative. Do you remember using those words at all? If you do, do you remember whether you meant that Amex were making you bankrupt literally (ie because you were aware at that stage of the possible consequences of the letter you had been handed or that a petition had been brought) or whether you used that phrase as a figure of speech (eg you felt as if Amex's demands for money were driving you to ruin in a more general sense)?

Edited January 23, 2009 by Viscount Stair
correcting for sense

[Traderx]

when i made that phone call i hadjust received a letter from the land registry that 'someone' was petitioning to make me bankrupt and that was now noted on the deeds. I called the land registry who gave me the courts number and case number. I calle dthe court who gave me the solicitors details and informed me it was AMEX.

 

I called the solicitors and asked why they were making me bankrupt, as it would affect my ability to earn. I also asked why this was back with amex as i understood it was now with Link Financial and i had made paymenst to Link.

[Traderx]

They have not filed other conversations and letters i have sent only the ones they think are incriminating for me!

[Traderx]

They have also included the following letter which i will delete from here after you acknowledge reading it Viscount

[Traderx]

message deleted

Edited January 25, 2009 by Traderx

[Traderx]

i sent this before i found this forum

[Traderx]

Bad News.....