Statutory Demand rec'd by Special Delivery - **SET ASIDE**

[foolishgirl]

Do you know what happens at a Set Aside hearing? ...

 

Please can someone tell me as I can't sleep worrying about this.

 

Please don't worry FDPM. The thought of it is usually more scary than the hearing. It is not a court room, no wigs etc. (forget TV dramas!), it's just an ordinary room with table & chairs on each side, DJ usually sits at the top. He/she will ask you why you think the SD should not go ahead. It helps if you state firstly that you are a LIP acting without the benefit of professional legal advice & then you basically explain all the stuff that you put in the affidavit, the fact that you have applied for more info. to the claimant (show the letters if necessary) & that you have not yet received the info.

 

I would put emphasis on the fact that DNs etc haven't been issued & that you suspect the claimant is using the SD process to circumvent the standard claim route of issuing a summons in the CC.

 

It's possible that he may then order an adjournment to allow the other side to fulfil the requests. The claimants may or may not be there but be prepared.

 

It helps if you can make a list of the points that you would like to make or that might be raised, number your copy docs & list all the number of each relevant doc against the point. You can then find them easily & quickly if you need to.

[fdpm]

Question.

 

How can a Debt Recovery company now threaten me with intended litigation whilst another debt company's solicitors have issued a stat demand?

 

I can't believe it!

 

I arrived home tonight, having lost my job which was part time anyway, to discover a letter stating that if I do not deal with it by 20th May, a claim may be issued by their clients... the same clients who have already issued the SD!

 

Is this legal?

[Blossomandebony]

Hi, FD,

 

You would be surprised what these people get up to. However, it is unlikely that any of the regulatory authorities would do much about this sort of blatant harassment, I'm afraid.

 

Main thing is, stick to your guns in getting the SD set aside. I was in a similar situation recently. When I got to the court, the judge simply asked me to state why I had applied for a set aside. I replied that the debt was in dispute and outlined why. She immediately said she would have to set the SD aside.

 

She then criticised their solicitor for verbally asking to adjourn the hearing, when he had not even applied for an adjournment!

 

Then she awarded full costs to me, as I am sure you will be, too.

 

As posters have already said, SDs are a scare tactic which often prompt people to pay up even disputed debts. Those who don't pay up, and apply to set aside the SD, invariably win!

 

By the way, I would keep the letter from the DCA as evidence of the incompetence and lack of morals of these people, to show the judge at your hearing - that should be fun!

 

Oh, and when is the hearing?

 

BAE

[fdpm]

Hi B and E - thanks - the hearing is scheduled for next Fri but waiting for response from the sols about their Consent Order - I wrote to say I would sign if they agreed that no further legal action would be taken!

 

If they haven't replied by Tuesday, I'm going to presume we're going to court and will submit my costs to the court on Thursday.

 

(Like the photo - is that Ebony or Blossom>

 

Mine is Fee - she was PTS on Feb 24th after 19 glorious years with me..sob)

[Blossomandebony]

Hi, FD,

 

Actually, the cat in the photo is called Flossie!. But you guessed right that I have two cats called Blossom and Ebony, and I also have another two! Just love 'em!

 

BAE

[foolishgirl]

 

How can a Debt Recovery company now threaten me with intended litigation whilst another debt company's solicitors have issued a stat demand?

 

I arrived home tonight, having lost my job which was part time anyway, to discover a letter stating that if I do not deal with it by 20th May, a claim may be issued by their clients... the same clients who have already issued the SD!

 

Is this legal?

 

So sorry to hear about the job FDPM, hope you get fixed up again soon.

 

Re. the threat of legal action in conjunction with the SD, it is further proof that the OC/DCA is trying to circumvent the court process for collection of debts & you should show the letter to the DJ as part of your hearing on Friday.

[42man]

Some other useful points here apart from the agreement aspect Wilson vs 1st County Trust...

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

Also are they still in default of a request for your agreement ? this is from the Consumer Credit Act

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (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 [F1 £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.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(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

 

(7) This section does not apply to a non-commercial agreement, and subsections (4) and (5) do not apply to a small agreement

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 – see Q1.21.

 

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.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

 

This might be of use also....

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

[foolishgirl]

Good luck for tomorrow, FDPM..

[fdpm]

Thank you so much 42 man and FG and IGNM and others who have helped me with all of this.

 

I have put together a BIG bundle -

 

I have printed out the House of Lords Judgement in the Wilson case and highlighted the appropriate Lord Nicholls bits... phew lots of reading there!

 

I have found loads of stuff on here and on the net regarding Default Notices so have put all of that into a little bit on its own

 

I have listed the letters from all the various dcas showing different amounts and attached copies of all the letters.

 

I have copies of all the letters I sent and the ones back from WS.

 

I have my affidavit

 

I have the last letter received from Moorcroft threatening legal action

 

I have the unreadable Amex application form and I have typed up a blurb about that too.

 

So... just now putting it all into some form of order ready for tomorrow.

 

I have made copies for the judge and also for the other side (just in case they do turn up)

 

Now just need to get my throat back -

 

Will let you all know how it goes!!

 

Fingers and toes crossed x

[foolishgirl]

You sound well prepared FDPM - keep smiling, no worries!!

[Blossomandebony]

Hi, FD

Did you send your bill of costs to the court and their solicitors? Has the other side said that they are going to turn up tomorrow?

 

BAE

[fdpm]

Hi BAE

 

No cos IGNM said in this case I could just present them on the day.

 

I don't know if it is nerves but I am so ill today... real flu like symptons, I'm shivering, my throat is soooooo sore and my chest hurts. Hope I haven't got Swine Flu! If I have I'll cough all over the solicitor! Lol (only kidding)

 

I think I'm well prepared. I called the Court today and it is still on for tomorrow so... I'm going, with my BIG Bundle and we shall just have to see.

 

Just hope I can sleep tonight!

[foolishgirl]

Hope I haven't got Swine Flu! ....

 

.....Just hope I can sleep tonight!

 

Big hot toddy - never fail remedy for both!

[Blossomandebony]

No cos IGNM said in this case I could just present them on the day.

FDPM

 

Don't understand.

 

BAE

 

 

[fdpm]

SET ASIDE!! Feels a bit like a hollow victory though!

 

Arrived early to court - the usher told us that the judges (2) had both been busy all day - mine was the last case - anyway went in bang on time - the other side didn't appear.

 

The judge immediately said that thay had received a letter offering to have the case set aside - had I not been informed?

 

I answered that yes, I had received a letter with a Consent Form but had written back asking for more clarification.

 

He shrugged and said if I signed the Consent Form now, it is over with.

 

I questioned about costs and he said 'that's part of the deal, no costs and anyway, they are probably negligible' !!!! I said, 'actually no', so he said 'well if you don't sign this its going to have to carry on'

 

I signed it.

 

I then asked about whether they should have used the insolvency court to chase the debt and he said 'they can do so if they wish, it's the law'

 

I got the feeling he wasn't too unbiased... and actually, in hindsight, I'm glad that it was so quick. He wasn't interested in my side of the argument at all.

 

So, they can now sue me through issuing a CCC - Bring it on because all the work I put into researching for this SD I can use in my defence to a CCC.

 

Anyway - Glad this bit is over - been really ill all day with very bad cold and sore throat so looking forward to early night!

 

Thank you to everyone who gave me advice...just sorry it wasn't a victory that I won!

[foolishgirl]

Well at least you got the SD which was the whole purpose of the exercise, so one up.

 

What exactly did the consent form say then FDPM?

[Blossomandebony]

Well done, FD!

 

A victory is a victory, don't dwell on the costs issue!

 

Besides, you now have the experience of what it feels like to go through the hearing process.

 

Plus the fact that the fact they have applied for a sd, then agreed to the set aside is definitely in your favour if it does go to the court claim stage.

 

BAE

Edited May 22, 2009 by Blossomandebony

[steven4064]

Well done FDPM. Round one to you anyway

 

I've changed the title to SET ASIDE.

 

We'll keeep the thread here so that you can carry on using it for round 2.

[supasnooper]

Congratulations and well done FD.

 

Enjoy your weekend.

[UK26]

subs