claimant, defendant or respondent ***WON***

[shamay]

Hi all,

I seem to be getting myself into a bit of a state about this. Last month my husband had a SetAside hearing for a statutory demand it was adjourned until early next month.

After the hearing we were sent the poticulars of the hearing which are as follows

IT IS ORDERED THAT

 

1. The application to set aside the statutory demand be adjourned until 8th April 2009 at ****am defore District Judge **** with a time estimate of 30 minutes.

 

2. The respondent is permitted to file and serve an amended Statutory Demand to include an application under Section 269 of the Insolvncy act 1986

 

3.witness statements in support of the ammended statutory demand are to be filed and served by the Claimant no later than 14 days prior to the adjourned hearing

 

4. Costs of today are reserved

 

So if the otherside are the respondent then i must be the claimant and provide a witness statement is that correct.

 

Also do i put respondent instead of defendent when doing the statement?

And also do i have to send the otherside acopy of the witness statement aor will the court do it, this has got to be done by Monday 23rd March as its the only time hubby can have off work.

[r&b]

subbing,

shamay, im sorry i cant help much but without exact knowledge, i would make the same assumptions.You have exactly the same court date as myself (simply has to be lucky rite? lol).I wish u n hubby the very best

r&b

[shamay]

Hi r&b thanks for your support and lets hope that date is lucky as this has been going on way too long now and i will be glad when its all over.

good luck for the 8th

[caro]

Hi all,

I seem to be getting myself into a bit of a state about this. Last month my husband had a SetAside hearing for a statutory demand it was adjourned until early next month.

After the hearing we were sent the poticulars of the hearing which are as follows

IT IS ORDERED THAT

 

1. The application to set aside the statutory demand be adjourned until 8th April 2009 at ****am defore District Judge **** with a time estimate of 30 minutes.

 

2. The respondent is permitted to file and serve an amended Statutory Demand to include an application under Section 269 of the Insolvncy act 1986

 

The organisation who have filed the SD is the respondent to your setaside request, so has to provide an amended application.

 

3.witness statements in support of the ammended statutory demand are to be filed and served by the Claimant no later than 14 days prior to the adjourned hearing

 

I assume the set aside was allowed so now the original case will be heard. I assume you didn't do anything about the original court case. Is that right? The organisation is making the request for a SD, so they are the claimants.

4. Costs of today are reserved

 

So if the otherside are the respondent then i must be the claimant and provide a witness statement is that correct.

 

Also do i put respondent instead of defendent when doing the statement?

And also do i have to send the otherside acopy of the witness statement aor will the court do it, this has got to be done by Monday 23rd March as its the only time hubby can have off work.

 

My understanding of this is that you need to wait for the amended SD claim, and I would think that at that stage you will be able to defend the case.

Do you have another thread about this as it's hard to put into context from one post.

[shamay]

hi caro.

Here is my original post. The amended stat demand was received on the 10th march, i really need to know if its me that has to provide a witness statement.

 

Hi there

This is very long winded so please bear with me.

In February 2008 Arrow Global managed to Get a charging order against my property for a defaulted credit card about £11,000. I didnt defend the claim at all just sent back an expenditure sheet and repeated offers of £50.00 per month which were refused.

Then on 31st dec 2008 got issued with a stat demand went to court in Feb for a SetAside hearing on the grounds that the debt has now become a secured one.

The othersides representitive claimed that Arrow Global would be willing to give up its claim to the charge if a bankrupcy order was granted.

The judge then ordered that another SD could be served with the above amendment.

On tuesday i received the amended stat demand and really dont know what to do know.

At the hearing i distinctly heard the judge say that the new sd had to be served within 14 days but in the letter we received from the court afterwards it just said that a new Sd could be issued.

It also says that witness statements in support of the sd are to be filed and served by the claimant no later than 14 days before new hearing which is 8th March.

Arrow globals main concern was that there will not be enough equity in the property should i sell it, but after mortgage and other secured loans etc have been paid then there will still be about £ 60.000 equity left.

So can i go down the same route as before in saying that the unsecured loan has been secured by way of the charging order and stress that there will be enough equity there or shall i try another route.

Help really needed here please

[caro]

I assume the new hearing is on 8th April?

 

Firstly do you know that this debt is enforceable?

Have you got a valid CCA?

Who was the credit card with?

Did you receive a Notice of Assignment when the debt was sold?

If it is an enforceable debt, are you in a position to negotiate a figure to settle the debt - maybe a percentage?

 

As you are talking of having equity in your property I take it you don't want to be made bankrupt.

[caro]

See if anything in this excellent post by sequenci helps http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/112326-dcas-statutory-demands-few.html#post1102399

[shamay]

I have asked asked Arrow global for copies of the CCA and notice of assignment etc but they wrote back saying that as a charging order has already been put on the property then " it is not relevant to this present position " .

The credit card was with MBNA.

 

I assume now that i do not have to provide a witness statement but Arrow global do. Do i need to respond if they do?

[shamay]

And i definetly dont want to be made bankrupt

[caro]

I don't claim to know much about these issues, but if there's already a charging order on your property, I don't know if they can then issue a statutory demand to pay.

 

They say they're willing to give up their claim on the property if bankruptcy is allowed, so I still think they should be forced to provide evidence that they can enforce the debt. The fact they have proved reluctant to do so makes me think they can't provide a CCA, rather than won't.

[42man]

Shamay...have a read of this - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190564-statutory-demand.html

 

It seems they already have security.....as for fighting this then I would send a SAR to get them to reveal all the paperwork (send to the original creditor and a SAR to Arrow might also be a good idea...)....you could possibly challenge the charging order and get the CCJ set aside.....you may also like to show this to the judge too, this is froma letter from Gareth Thomas who is Undersecretary Of State For Trade And Consumer Affairs.....

 

"Debt collectors who issue stat demands without giving debtors reasonable opportunities to agree a repayment schedule are likely to be in breach of the OFT's debt collection guidance. This guidance outlines the type of business practice that the OFT consider unfair and therefore incompatible with fitness to hold a consumer credit licence.

 

In addition to this, the government has recently strengthened the OFT regime to give them greater powers to investigate and take action against unscrupulous or incompetent firms. The OFT will be targetting its monitoring and scrutiny activities on debt collectors."

 

It would also be worth writing to this chap in support of your case and the OFT too....your local MP could help too...

 

There is another option to getting this set aside, IF you can get an application in at the same time to dispute the original debt/charging order.... - Removal of CCJ's - Step by step guide to the process - in which case a judge would take note in the set aside hearing that an application is in the process to set aside the original judgment....

[shamay]

Hi 42man

Yes i have been thinking about having the original ccj/charging order setaside but my biggest problem is explaining to the judge on why it has taken so long to to apply for this. It has been over a year since the charging order. I have now got the defence that they will not produce the cca or notice of assignment but its just the time delay thing thats worrying me.

[shamay]

I have already sent an SAR to Arrow Global last week but not MBNA

[42man]

How long is it since the CCJ ?....

[shamay]

Sorry 42man Ccj Was Obtained Feb 08 And The Charging Order In Sept 08

[caro]

I would think that the fact that despite the charging order, you are now being pursued for payment with a statutory demand would be reason enough to now fight this. You are also more aware of your rights and realise that there are grounds to apply for the CCJ to be set aside.

 

In reality I wonder if Arrow will even amend the POC to include the bankruptcy petition. If they don't have the appropriate paperwork they won't have a case. As it's MBNA I believe there's a good chance they won't have the paperwork, although you can't count on this. Very often SDs are used as threats, but not so many actually go down the route of pursuing bankruptcy. The judge may be aware of this, so maybe that's why s/he gave them leave to amend the POC, to see if they'll actually do it or will drop the claim.

 

If they do amend the POC, which you have to assume they will, you'll have the opportunity to submit your defence. You could win this as long as read up all you can on the issues involved, understand the legalities, and prepare your case thoroughly for court. You have to be prepared to put the work in, but CAG is here to help you.

[shamay]

hi caro

i have already received the amended SD the amendment is not made on the POC page but on the front page and it reads like this

The creditor did obtain security by way of a final charging order but in accordance withs269 of the insolvency act 1986 the creditor confirms that he is willing in the event of a bankrupcy order being made, to give up his security for the benfit of all the bankrupts creditors.

 

The setaside forms have to be in tommorow as its the only time hubby has off work.

Should i state on the setaside form that i am looking into having the original CCJ setaside or not.

I really dont know what to do now

[shamay]

Also i have been reading on the National debt helpline website regarding receiving receiving an SD after a ccj/charging order has been granted, it basically says that you cant go down the non production of a CCA route etc

[caro]

I'm getting confused now (easily done).

 

You have already submitted your application for the SD to be set aside, and that has been adjourned. Is that right so far?

[shamay]

yes thats right the judge ordered that another amended sd could be served which has happened and the new court date is april 8th, but we need to submit set aside forms tomorrow as its the only time available due to work commitments.

[caro]

Have you been told by the court that you need to submit new set aside forms? It hasn't been stated in the order, and you already have an application in for a set aside which will be heard on April 8th.

[shamay]

No i havent been told by the court that we need to submit new setaside forms i just assumed i had too as it was a new SD served on me,

[caro]

Well if the hearing for the set-aside has only been adjourned, I'd suggest that the application is still under consideration.

 

What did you put down as the original reason for applying for the set aside?

[shamay]

I put that as Arrow global have a charge on our property the unsecured debt has now become a secured debt, but now Arrow global are willing to give up the charge SHOULD a bankruptcy order be granted.

They have basically admited that they are worried that there is not enough equity left for them to get their share should the house be sold.

[caro]

But a bankruptcy order hasn't been made yet, so the position is still as stated.

 

It is not necessary to take documents to court personally, and the court have not actually asked you to do anything at this stage. I suggest that you phone the court tomorrow and check if you are required to supply anything for the court before the hearing. If you do, then make a careful note of what they say, and follow the instructions. You can either try and sort it tomorrow when your husband is free, or post what's needed.

 

If not, which is what I suspect, then you need to prepare yourself to fight your corner in court on 8th April. At that stage you can explain to the judge why you don't think that's bankruptcy is appropriate. I would suggest that at that stage you might take an application with you to set aside the CCJ for consideration. I don't know if that would be accepted or not, but we can go over that over the next couple of weeks as you prepare for court.

 

Did you attend court and defend when the charging order was made?