AMEX / NEWMANS......Statutory demand, help please.

[Liz Southern]

Firstly I apologise if I'm doing this the wrong way or breaking protocol, but I can't find any way of starting a new thread. I only joined today. I am having trouble with Amex too. I have until this Friday to apply to have a statutory demand they sent me set aside. They typed the date 16th March 2009 on the front page but hand delivered it to me on 25th March. Yes, Newmans are nasty, even to when I put the phone down on them because they were being abusive, they rang me back and continued doing it. I am only dealing with this now at this late stage because I have been seriously unwell since all this started.

 

I stand to lose my children's nursery and my home if I get made bankrupt. I am petrified. I want to have the stat demand set aside by saying that the debt (£17,900) is an unenforceable credit agreement. Can anyone please suggest a good wording for this please? The form for replying isn't very clear. I don't want to fill it in wrong.

 

I guess I'm running out of time but I've been reading the thread and I'll send Amex in London the CCA letter and the Subject Access letter. I suppose if I don't get the stat demand set aside I can always carry on and hopefully prove the debt isn't enforceable before a bankruptcy hearing.

 

I would appreciate any help.

 

Regards

Liz

[Alphageek]

Liz, I can't help with Stat Demands, but I have brought this post to the site team's attention.

 

Someone who is knowledgeable in that area should help you soon.

[maroondevo52]

Hello and Welcome,

 

I've moved your post to start a new thread as Alphageek suggested.

Sorry, I'm not too clued up on Stat demands either, someone will help you soon.

 

Regards.

 

Scott.

[Liz Southern]

Hi

 

I've just gone back through my records. I got my Amex card in May 2007. Any ideas as to how to proceed, please?

 

All ideas welcome at this stage.

 

(By the way, my accountant says, "Go for bankruptcy - it'll all be over in a year", and my solicitor (who's useless), said it would be terrible to be made bankrupt and it will be with me for a lot longer than a year.)

 

I just emailed President Obama, asking for his help in being treated fairly. Well, you never know!

 

Regrads

Liz

[foolishgirl]

You have 18 days from the date of delivery (25 March) to apply for a set aside - ignore what they put on the front page, it's delivery they have to prove.

 

You have to complete forms 6.4 & 6.5. Have you got those?

 

Suggest you read this thread - it gives you lots of help/egs with completing the forms.

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

You need to dispute the debt eg. non production of the agreement (which you will know in 12+2 working days), no statements, possibly that the debt is all charges, no LBA, no default notice, no NOA - did you get any of these?

[Liz Southern]

Hi

 

The Stat Demand arrived on its own, by process server, with no original agreement attached. I have received notices/threatening letters from Newmans, but I can't think if I've had any from Amex. The demand was signed by Copes solicitors. What's an NOA and an LBA, please?

 

I do have the two forms to complete to have the stat demand set aside.

 

It's the timing of all of this I find confusing. If I have to get this application to set aside to the court tomorrow, then how can I use as grounds the fact that they haven't provided me with a copy of the original signed agreement, or should they definitely have sent one with the stat demand?

 

Regards

Liz

[Liz Southern]

Hi

 

I have just been on this site,

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft1002.pdf

It has a copy of the CCA 1974 as amended in 2007.

It says,

"9.5 In addition, the OFT and Local Authority Trading Standards Services have powers under Part 8 of the Enterprise Act 2002 to take enforcement action where there is a breach of legislation which harms the collective interests of consumers.72 Enforcement action may also be

taken where appropriate under the Consumer Protection from Unfair Trading Regulations 2008."

 

Perhaps we should all write individually to the OFT about Amex?

 

Regards

Liz

 

[Alphageek]

What's an NOA and an LBA, please?

 

NoA = Notice of Assignment

LBA = Letter before action

 

NoA: When (if) the original creditor sells an account to a debt collection agency, they are obliged to send you a NoA. They should send it via recorded mail as well for the NoA to be deemed served correctly.

 

Without a correctly served NoA, the sale is not "perfected" in law according to the Law of Property Act and the new "owner" would have no right of action to bring a claim against you.

 

LBA: Is the final letter you would receive or send prior to issuing a claim at Court. The Court should see that you have done all you can to settle the claim out of court. An LBA is a part of that process.

[foolishgirl]

First, liz, you need to get those requests for CCA & SAR in the mail - Rec. Del, do not sign, print or use dig. signature (see next post) then fill in & submit the Forms 6.4 & 6.5. When you sign the forms here make sure the line goes through your signature so it can't be copied & pasted by sols. on to other docs.

 

Just some ideas for those as you have to submit to court today but PLEASE check it all applies to your case & amend where necessary:

 

Form 6.4:

 

1. I do not admit the debt because the creditor has not provided any evidence of his claim as required by the Consumer Credit Act and is prevented from enforcing any claim until he does by the provisions of that Act.

And further that the creditor is bringing a claim under the Insolvency Act 1986 in order to circumvent the lawful prohibitions placed upon him by the Consumer Credit Act 1974

 

Form 6.5

 

(with thanks to recent post by 42man

If this the solicitors acting on behalf of Amex, then the debt will not have been assigned.....if they are acting on behalf of a debt collection egency then it will have been assigned, if it is the former, then you'll have to delete the pieces on assignment in the affadavit....)

 

The debt is totally disputed

The alleged creditor has not provided any legible copy of a copy of the agreement referred to in the demand.

 

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 XXXXXX. via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip – 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 slipping in default 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)

 

The alleged creditor has provided no default notice in accordance with the Consumer Credit Act 1974 this stated the default notice in order for it to be valid must be in the prescribed manner and be correct.

 

 

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
  

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.”

 

 

The defendant has not been provided with any statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges)

The Defendant denies that he is liable to the Claimant as alleged in the demand 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, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

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

 

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was “sent/served (EDIT this)” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law.

 

I gracefully request -

The Judge dismisses the demand on the above evidence.

The Judge order the claimant to delete all adverse information held on my credit files.

The Judge orders the claimant to pay my full costs in light of the distress and damage to my family and to make an indemnity award

 

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).

 

I believe the facts herewith in this form are true.

[foolishgirl]

The CCA request will cost you £1.00. make sure you ask for it under S77/78 of the CCA1974.

The SAR will cost you £10.00.

 

Send POs, sign but put line or crosses through signature. Send Rec. Del.

 

 

Data Protection Act 1998

 

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxx

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

[42man]

Some super help here.....as has been mentioned the debt will not have been 'assigned' if Newmans are only collecting on behalf of....but if they are mentioned as the assigned creditor/owner of the debt then the debt will have been assigned to Newmans.....

 

Also did you ever receive a default notice ?

[Liz Southern]

hi

 

Decided to take a message off the board.

 

Liz

Edited April 9, 2009 by Liz Southern
Post tidy up. . edited

[Liz Southern]

Why are all the fonts showing?

Liz

[ukaviator]

Liz, is this debt of £17,900 the one loan or a mixture of credit card debt from the same company?

 

Most credit agreements up to £25,000 are "regulated" by the Consumer Credit Act 1974. This means that your creditor has to sue you in the county court and cannot transfer your debt to the High Court for enforcement. The High Court is most likely to be used by creditors for debts over £15,000 that are not regulated by the Consumer Credit Act 1974.

 

We need to know if this is a regulated agreement. Is there anything in the paperwork that tells you this?

 

Even though this is may be an unregulated agreement they still have to abide by the OFT Debt Collection Guidelines as well as the Consumer Protection from Unfair Trading Regulations.

[42man]

I'd agree with Aviator above....also yo umay like to send a letter to Gareth Thomas who is undersecretary of state for trade and consumer affairs he recently stated that -

 

 

QUOTE "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.

 

If you wish to comment on a company's non-compliance with the OFT's guidance, you can do so by going to the OFT website and downloading a complaints form, which has been established so that debtors and their representatives can provide them with the information they need in order to investigate complaints quickly and effectively. The form can be found at: The Office of Fair Trading: Debt collection practices "

[Liz Southern]

Hi UKAviator

 

Just got your message. A default notice I had quoted S 86(1) of the Consumer Credit Act 1974. It was one credit card, with different purchases of goods and cash.

 

Does this help?

Regards

Liz

[Liz Southern]

Hi 42man,

 

I already complained to Amex, Chairman and CEO in New York about the tactics of Amex Brighton and their DCA, and told them that it was against OFT guidelines to behave in such a way, and told them that if they continued, I would complain to the OFT and Ombudsman. (I also asked the CEO if he would cancel the debt.) I queried how they said I owed them £21,000 odd and Brighton sent me a terse letter with several copy statements, saying the debt was £17,800 odd. Then I received the SD.

Regards

Liz

[Liz Southern]

Hi

Can anyone give me guidance in completing the 6.4 application, please? I have put the solicitor's name as the person needing to turn up. Do I add in American Express? Will the court help me complete the form?

 

Thanks

Liz

[42man]

Filling out form 6.4 (stat demand set aside)

 

Statutory Demand on a Stature Barred Debt! Mortimer Clarke/Marlin ***WON***

[42man]

You need to complain to the OFT ASAP.....

[Liz Southern]

Hi 42man

 

I did 5 copies of everything. Got the CCA and Subject Access letter off to Amex, Brighton. I didn't send copies to the solicitors. I will send copies to Amex, London, on Tuesday.

 

Rushed down to the County Court at 4.35 p.m. to find that they had closed at 12 noon and will re-open at 10 on Tuesday. I'll go down there on Tuesday and ask what the position is, as my deadline was tomorrow but they were closed. Hopefully they'll allow me to file it. If they don't, I'll have to consider what comes next!

 

Thank you everybody for your help. Have a nice weekend.

Regards

Liz.

[foolishgirl]

They'll almost certainly allow you to submit it liz - just speak to them nicely

[foolishgirl]

 

A default notice I had quoted S 86(1) of the Consumer Credit Act 1974. It was one credit card, with different purchases of goods and cash.

 

 

Just noticed this post liz. Are you sure it was S86(1)? This deals with the death of a debtor.

 

Maybe it was S87 or 88?

[ukaviator]

Liz was there any PPI on the card account?

[Liz Southern]

Hi Foolishgirl

 

The notice was dated 24.11.08 and says, "Notice of Default Sums Served Under Section 86(E) of the Consumer Credit Act 1974". (Not 1 as I put.)

 

Hi Ukaviator

 

I was never told if there was any ppi on the account. If they added it, they didn't tell me.

 

Regards

Liz