Statutory Demand marlin, I need Help please *** WON + COSTS ***

[42man]

When you do ask the judge for your costs you can quote him this case -

 

As a lone parent with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

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. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

And when you tell the judge about not being able to contact the person named on the demand you can quote him this case too -

 

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

[lowwill]

You are a revelation Sir. One thing I did notice on the SD is that they got my name right, the number and street right but put me in a different English County although the Post Code was correct. I'm not sure of the relvance but I included it in my letter suggesting that as well as bein normal postal service I felt is was bad service given the demand.

[389shell]

Just popping on here to say good luck, hope everything works out for you.

[lowwill]

Another update that is now giving me rise for concern. Just got home and a letter from the court awaits me. I sumitted the S.D. and my rebuttal yesterday morning and this letter says;

The Court has received your application to set aside a Statutory Demand.

Your application will not be given a hearing immediately. It will first be referred to a District Judge. If the judge considers that your application shows no cause for setting the demand aside, your application may be dismissed. If this happens you and the judgement creditor will be told.

If the District Judge does not dismiss your application on this first occasion, you and the judgement creditor will be sent a time and date when the application will be considered.

 

Is this the normal procedure please?

[Dibsthefrenchie]

Hi Lowwill, Don't worry, I received the same letter, when I applied for a set aside.

I hope it all goes well for you.

Dibs

[lowwill]

Thank you, just mithering I guess.

[Shawn0109]

Dont worry about it lowwill they normally do this it is common practice, if a judge looks over the evidence before making a determination to go to hearing the Stat Demand might just get set aside without one, my sister in law told me that judges across the country are somewhat getting sick of numerous DCA's issuing out these Stat Demands because it is an abuses of the process and in someways wastes the courts time and yours, so again dont worry yourself like I say it is standard practice sometimes.

[lowwill]

Two letters today, the first really confuses me. It is from Marlin Financial Services again and goes;

We write with regards to the above matter and in particular your letter dated 20th January 2009. (That was the letter telling them they are wrong to pursue this without a CCA taken from this forum)

further to your recent request for a copy of your credit agreement, we can confirm that this has been requested from our client and will be forwarded to you once received. (they have already written in December to say they do not have it)

Please be aware that our interpretation of a recent High Court judgement is that a debt remains live and is payable if a creditor fails to provide a copy even after a proper request under the Consumenr Credit Act 9174.

This means that you remain liable to pay the debt. A Statutory Demand has been served on you and payment in full is required in order to prevent further bankruptcy action.

We hope this is of assistance and look forward to your payment proposals etc etc etc

 

Now my problem with this is that I requested a CCA on the 28th November 2008 and on the 3rd December 2008 they wrote saying they did not have it. Then on the 30th Jan 2009 I received a Statutory Demand to which I gathered all my evidence and presented it to court on Monday last (02.02.09)

With that letter above I also today received a letter from the court to say I have a 15 mniute hearing on the 25th February 2009.

So three immediate questions. 1. Are they still trying to put the frighteners on me? Do you agree it seems they are not aware of my trying for a Set Aside hearing? and 3. The fact the hearing is for only 15 minutes for me to put my case does that indicate I've lost already?

[Dibsthefrenchie]

Hi Lowwil, it sounds as if they are trying to bully you into simply paying them. My court appearance for a set aside was allocated 15 minutes, it must be normal practice.

Before the Court date you will receive a copy of Marlins reply to your application for a set aside, they will also state if they are to attend Court and defend the SD.

Do you know if charges have been applied to the account, and if so, approximately how much would be outstanding after they were deducted?

I know how frightening this situation can be, my case was not that long ago, but there really is nothing to fear.

Dibs.

[fiftypence]

Two letters today, the first really confuses me. It is from Marlin Financial Services again and goes;

We write with regards to the above matter and in particular your letter dated 20th January 2009. (That was the letter telling them they are wrong to pursue this without a CCA taken from this forum)

further to your recent request for a copy of your credit agreement, we can confirm that this has been requested from our client and will be forwarded to you once received. (they have already written in December to say they do not have it)

Please be aware that our interpretation of a recent High Court judgement is that a debt remains live and is payable if a creditor fails to provide a copy even after a proper request under the Consumenr Credit Act 9174.

This means that you remain liable to pay the debt. A Statutory Demand has been served on you and payment in full is required in order to prevent further bankruptcy action.

We hope this is of assistance and look forward to your payment proposals etc etc etc

 

Now my problem with this is that I requested a CCA on the 28th November 2008 and on the 3rd December 2008 they wrote saying they did not have it. Then on the 30th Jan 2009 I received a Statutory Demand to which I gathered all my evidence and presented it to court on Monday last (02.02.09)

With that letter above I also today received a letter from the court to say I have a 15 mniute hearing on the 25th February 2009.

So three immediate questions. 1. Are they still trying to put the frighteners on me? Yes Do you agree it seems they are not aware of my trying for a Set Aside hearing? Sounds like they don't don't know whether they are coming or going as far as their admin is concerned! Or just playing dumb perhaps? and 3. The fact the hearing is for only 15 minutes for me to put my case does that indicate I've lost already? No they probably only allocate this as standard policy, and you will probably be done in less than 5 minutes if the other side don't show.

 

You just need to wait until your hearing now and the set aside should be granted, don't give in to their intimidatory tactics.

[lowwill]

Good Afternoon CAGGERS, please see the attached letter received today. I find it a little ambigous and it seems as though they are at sixes and sevens. But guys can you give me your comments please;

Thank you, I go to court on Wednesday and have already submitted my portfoloi as defence.

[fiftypence]

Ha ha, they have bottled it!! Turn up at court and claim your costs, they won't even be there, this one's in the bag. And just to pre-empt one possible hurdle, the judge may question why you bothered to attend since the other side were allowing the set aside without a fight - tell the judge that you don't trust them and that its not unknown for DCAs to play tricks like letting you think they won't turn up to defend and then they do turn up and you end up with a judgment against you by default.

 

Make sure you push for your costs (even if you have to compromise on the amount) as some judges have allowed the set aside but not granted any costs.

[silverfox1961]

Now, about changing that name. Lowwill just doesn't do you justice anymore.:D

 

I'm so pleased for you. Another result for you and the CAG. I agree with Fiftypence. Turn up, claim your costs (I think you need to fax them to the court 24 hours before your case) and gloat

 

fox

[lowwill]

Well I'm back from the court but I think it is a hollow victory. If any of you read the letter I copied on to this forum you will see the paragraph whereby they state their client (Phoenix/Marlin/et al) has an opinion that I do not have a defence and they believe the correct course of action is to pursue this in the County Court. They then said that they agree to the S.D. being set aside.

Well the upshot was that the Judge did agree to the Set a Side and awarded me £95.00 in costs but he also suggested ( almost warned me) that they might indeed pursue this in the C.C.

I guess then I wait for the next bunch of letters and a court date. Gosh I wish it was over but I'm so lost. Hospital, 64 next month and a divorce in the offing, is it really worth it? Sorry, feeling sorry for myself I guess, all at sea. Any Ideas guys please. I'm thinking the award of costs might makle them even more angry.

[silverfox1961]

Hi Lowwill,

I'd not worry about them, they tried it on and lost. The SD has been set aside, you got your costs. hopefully it's another nail in their coffin. They would have to come back with something more substantial before they could even think of trying it on again.

I don't know if they will try to sell it on.

 

 

fox

[fiftypence]

Well I'm back from the court but I think it is a hollow victory. If any of you read the letter I copied on to this forum you will see the paragraph whereby they state their client (Phoenix/Marlin/et al) has an opinion that I do not have a defence and they believe the correct course of action is to pursue this in the County Court. They then said that they agree to the S.D. being set aside.

Well the upshot was that the Judge did agree to the Set a Side and awarded me £95.00 in costs but he also suggested ( almost warned me) that they might indeed pursue this in the C.C.

I guess then I wait for the next bunch of letters and a court date. Gosh I wish it was over but I'm so lost. Hospital, 64 next month and a divorce in the offing, is it really worth it? Sorry, feeling sorry for myself I guess, all at sea. Any Ideas guys please. I'm thinking the award of costs might makle them even more angry.

 

Their best course of action (for you) is County Court - the judge will order you to pay not a penny more than you can afford that's why there isn't a hope in hell of them taking this anywhere near a court, total bluff on their part and an underhanded threat to intimidate you. You won, end of story!

[lowwill]

Please Sir that you are right. I'm sorry but I do not know if I can take this for another 2 years. but thank you for responding.

[silverfox1961]

Lowwill,

You are just so polite.

I totally agree with Fiftypence.

If they thought they had a case, they would have been at the court challenging you but they bottled it.

You won.

If they ever decided to try it on again you will know where to go for help.

 

In my opinion, they would be very silly to go there.

 

fox

[noomill060]

Yes, very silly indeed.

[42man]

Well done...if they attempt a county court claim, that will be thrown out too using the CPR 31.14....then when they withdraw the claim, you can make a wasted costs order....make sure they pay you the £95 too, if they don't then send the bailiffs in.....