Stat demand - ARROW GLOBAL LLC ***WON + COSTS ***

[Docman]

Be careful. Arrow Global Limited is a listed UK company that acts as a collection agent but it is not the entity that bought debts from MBNA. That is Arrow Global LLC, an American partnership.

[lorri-croft]

Docman,

 

So should I put Arrow Global LLC details in (a) and (d) as they are the creditor? If so, should I put their US address?

 

The letter received in May 'Notice of Intention to serve SD puruant to Section 268(1)(a) of Insolvency Act 1986' had Arrow Global LLC header but address quoted as Litigation Unit in Manchester(where AG Ltd based).

I received in corresponence that Arrow Global Ltd is their data controller so, is it they I should SAR?

[Docman]

You should put down what is on the SD. Don't assume one entity instead of the other or an address that is not on the SD.

 

Let them try to confuse everyone else and break a few more regulations. If the time comes, you can ask Arrow Global for documentation to back up their claim under the Court's rules [the CPR]. Right now you have to go through the hassle of getting the SD set aside.

[lorri-croft]

Docman,

I'm just trying to clarify as BOTH Arow Global LLC (creditor with US Address) AND LTD (issuer of SD with Manchester address) are on SD (see copy of SD posted on the thread). That's why I'm asking....don't want to complete incorrectly!

[42man]

Put the LTD UK Company on the demand.....

 

The defendant totally disputes the debt.

 

The alleged creditor has provided no enforceable consumer credit agreement that contains the prescribed terms.

 

THE IMPORTANCE OF THE CREDIT AGREEMENT

 

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 (name of solicitors/dca). 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 (take 2 copies one for the court and one for you - these will need to be sworn in at your local court along with your affadavit) – 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

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account. (it not being uncommon that some debts are made up entirely of excessive penalty charges)

 

The alleged creditor and the alleged original creditor have not provided any valid notices of assignment.

 

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)

 

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.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.

 

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 demand.

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, dating 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

Section 87(1) of the CCA 1974 says:

87.--(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....

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is. 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

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

 

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

 

 

On the above information and the fact that there is a clear dispute I believe this is a blatant abuse of process and in light of this I request that the demand is set aside and I kindly ask the the judge to award my costs in this matter as a LITIGANT IN PERSON.

 

As a lone parent/low income earner/low income family 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).

 

Have a good read through and number it clearly and make references to the agreement request, this is a total defence in itself....their lack of communication is unbelievable....and sending a demand whilst it is disputed which is clearly obvious is an abuse of the process....they cannot escape the fact that they didn't know that it was disputed, it is their own fault they choose to not inform the company that it was disputed.....

 

Your costs need to be submitted 24 hours before the hearing......they might try and wriggle out saying that they will agree to your set aside but without paying costs - If it was me I would not allow this, I would get a judge to kick this into touch so that you can show this as evidence in the future if needed, Get the judge to spit fire at them for this blatant abuse of process....

[I've got no money]

Subbing - so Arrow Global have a new tactic...

[42man]

Unfortunately IGNM....not a new tactic for them...

[I've got no money]

I s'pose its' another means of intimidation

[Docman]

I think it is a new tactic. The address in Manchester is also the address of a new firm of solicitors. They may be quite separate but I suspect it is the latest set of lawyers engaged by AG.

 

On the point of which name to put on the 6.4 form, and I can see Lorri's dilema, I suggest the LLC should be stated as the name but that the addess to send papers is the LTD. address

 

Thus

 

Name of Creditor -

 

(a) Arrow Global LLC

 

Persons to be served

 

(d) Arrow Global Litigation Unit

Arrow Global Ltd

Hardman St, Manchester

 

Sorry to be pedantic, but LLC is stated to be the assignee and herefore the creditor.

Edited July 3, 2009 by Docman
typo

[lorri-croft]

Hi all who've posted on my thread so far. It's so nice to know there are more knowledgeable people to turn to....

 

 

• Docman, re your post #8 and Shadow's post #18 re trying to contact them/getting through/getting the right company....
  

Husband tried today. He first tried the 0800 tel. no for the two lady contacts quoted on the SD. this went to ansaphone saying 'This is Arrow Global...no no. available...leave name and tel no....' so he hung up.

 

He then tried the 0161 tel no on the first page of SD which was for Head of litigation who signed the form. A man answered saying Arrow Global (he didn't get his name) and hubby just asked to speak to one of the named contacts. He seemed reluctant to put hubby through saying 'think she's busy' but, he did give another extension. When hubby rang, he got through to the lady straight away.

He said he was ringing in response to SD received , and advised her he would be respondig in writing shortly. Her immediate comment was, 'are you making a payment then?' so he just said 'wait for the correspondence' and hung up.

 

Just thought I'd share that with you all. Seems like, SD delivered correctly process server and can contact SD quoted people (eventually) so it seems like they could be 'going all the way'.

 

• re confusion as to who to put where on 6.4 LLC or LTD etc..
  

Will follow Docman's advice post #37.

 

• re 42man posting re Affadavit.
  

Much 'meatier' than my feeble attempt! Thanks everso.Will read thoroughly and look at your notes re costs too asap and get back to you shortly once digested.

 

 

 

 

• Some notes to 42man.
  

I've typed SAR to OC (Monument) using the address PO Box 6476 Northampton which was address we had previous corres from (hope that is still current). I will get posted Rec Del with £10 PO tomorrow am.

 

Should I SAR the others in between Monument and Arrow? Raphael's/Compucredit (Compucredit is who they have quoted as OC on SD ie. who hey got it from)

 

I've typed CCA request to Arrow Global (headed LLC/Ltd) at Manchester address which will go tomorrow.

 

Should I refer to previous CCA request via Transcom in this letter or not?

 

 

Is it worth sending SAR to Arrow Global Ltd at this time?

 

Re reporting to OFT, I will do this once I've got the CCA/SAR/SD set aside/Affadavit paperwork in hand. Then I should have a bit of breathing space.This is a lot to take in and deal with in one go. I had a shoulder op 10 days ago so am still recovering/seeing physio etc.

 

Thanks for all your support.

 

Lorri

 

PS the letters we received that I scanned on my original post...are they the NOA's that people refer to. I haven't a clue if they are or not. Don't ever seem to have come across one on here to compare to.

Edited July 3, 2009 by lorri-croft
typo

[NitrousOxide]

Hi,

You put LLC and I did LTD so I think the best thing to do is to see which one they pick fault with and post back here. That way in future others will be prepared.

I only put LTD as the lady at the court said it was them making the demand.

[lorri-croft]

Nitrous Oxide-re your post #39.

 

You put A G Ltd on your friends' application 6.4. In your post #23 you said creditor should go in section (a) of the form.

On our SD (see scanned copies post #22) Docman is right when he said it clearly shows AG LLC as the creditor.

 

Did your friends' have Arrow Global Ltd in the section 'this demand is served on you by the creditor' where ours had LLC?

 

Our SD also shows in section 'I am authorised to make this demand on the creditors behalf' Arrow Global Ltd.

 

So, I suppose it depends if it is 'the creditor' or 'the company making the demand' that should be in (a) and/or (d). All they put is 'person to attend' and 'person to be served'.

 

As I'm getting differing opinions(42man agrees with you too) , I think it wise to contact the Court for advice.

If I go for the option different to you, of course i'll post any developments to help anyone else in future.

[lorri-croft]

Just a quick update re LLC/LTd issue on form 6.4. for anyone interested.

 

I phoned the local court quoted on SD. Apparently, Arrow quoted the wrong Court...they don't deal with Insolvency/ Bankruptcy cases there!!

they gave me the CORRECT local Court phone no and I phoned them.

 

They have advised to put Arrow Global LLC C/O Arrow Global Ltd on both (a) and (d) and said that by doing that, I wouldn't invalidate the application.

[42man]

Excellent....find out your nearest court that DOES handle bankruptices and get it set aside there.....I'd say to put the wrong court on a stat demand is an abuse of process !!! you should include that too in the affadavit !!

[the_shadow]

Excellent....find out your nearest court that DOES handle bankruptices and get it set aside there.....I'd say to put the wrong court on a stat demand is an abuse of process !!! you should include that too in the affadavit !!

 

Yep form clearly states it should be the defendants nearest court which handles insolvency hearings

 

If they couldnt be bothered to check then tough

 

S.

[42man]

It doesn't matter about the CCA, the debt should NEVER have been passed on whilst it was disputed.....having CCA'd arrow for good measure....you can also include that in the affadavit....you need to make sure you beat the 18 day deadline though Lorri....

 

This is what the OFT say - section 2.8 (K) -

k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

2.6 (h) -

h. ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

c. using more than one debt collection business at the same time

resulting in repetitive and/or frequent contact by different parties

d. not ensuring that an adequate history of the debt is passed on as

appropriate resulting in repetitive and/or frequent contact by different

parties

[lorri-croft]

http://i151.photobucket.com/albums/s156/shaunieman/DCA/CCF06072009_00000.jpg

http://i151.photobucket.com/albums/s156/shaunieman/DCA/CCF06072009_00001.jpg

http://i151.photobucket.com/albums/s156/shaunieman/DCA/CCF06072009_00002.jpg

http://i151.photobucket.com/albums/s156/shaunieman/DCA/CCF06072009_00003.jpg

http://i151.photobucket.com/albums/s156/shaunieman/DCA/CCF06072009_00004.jpg

http://i151.photobucket.com/albums/s156/shaunieman/DCA/CCF06072009_00005.jpg

http://i151.photobucket.com/albums/s156/shaunieman/DCA/CCF06072009_00006.jpg

 

6.5 Affadavit above.

 

Have I misunderstood, 42man and included all your info when I should have only picked bits out as it is quite long??? If ok, is it clear enough?

 

re your prev post, debt never actually transferred whilst disputed. Debt was with Arrow when CCA request done (transcom just their agents to correspond with). However, take on board your OFT points...so slow at downloading Affadavit from photobucket that your post came through whilst in progress.

Edited July 6, 2009 by lorri-croft

[NitrousOxide]

Hi,

This is interesting.

They did the same to my friend. It was the nearest court that had a magistrate and was not the court that would have dealt with my friends insolvency (as per the rules). I suspect it's deliberate now.

I made the judge aware of the fact on my friends affi.

EDIT: Just read 42mans comment and it seems we are reading from the same page It's to frustrate proceedings I would guess. They will claim admin error I would suspect though. How a solicitor can name the wrong court would be considered a schoolboy error.

[lorri-croft]

Another interesting point to share. Hubby went to send 2nd CCA (as per 42man instructions) direct to Arrow Global at Manchester address on SD.

 

Man at Post Office asked if he was sure it was correct address as no Arrow Global listed at that postal address. Sent special delivery anyway....

 

Went on Royal Mail postcode finder and apparently, that address is Regus.

 

Serviced offices????

[Docman]

Its either deliberate or shows that Arrow have no intention of proceeding. Only certain county courts have bankruptcy jurisdcition, a fact well known to Insolvency Practitioners and solicitors acting for creditors who intend to continue with a bankruptcy petition.

 

IMO it could be deliberate in that many ordinary people will not realise they only have 18 days in which to lodge a set aside application although it is on the SD. Even if they do know they only have 18 days and then send the documents to the wrong court, even if it is their local one, there will be a delay. Most courts have a backlog of post, so it could take a couple of weeks for even an efficient court to return documents to a defendant/applicant. And of course, come day 21, in walk Arrow to the correct court and file a bankruptcy petition. Call me cynical perhaps....

[Docman]

Another interesting point to share. Hubby went to send 2nd CCA (as per 42man instructions) direct to Arrow Global at Manchester address on SD.

 

Man at Post Office asked if he was sure it was correct address as no Arrow Global listed at that postal address. Sent special delivery anyway....

 

Went on Royal Mail postcode finder and apparently, that address is Regus.

 

Serviced offices????

 

 

I suppose it couldn't be this one, could it?

 

http://www.regus.co.uk/locations/GB/Manchester/ManchesterSpinningfields.htm?product=offices

[the_shadow]

Its either deliberate or shows that Arrow have no intention of proceeding. Only certain county courts have bankruptcy jurisdcition, a fact well known to Insolvency Practitioners and solicitors acting for creditors who intend to continue with a bankruptcy petition.

 

IMO it could be deliberate in that many ordinary people will not realise they only have 18 days in which to lodge a set aside application although it is on the SD. Even if they do know they only have 18 days and then send the documents to the wrong court, even if it is their local one, there will be a delay. Most courts have a backlog of post, so it could take a couple of weeks for even an efficient court to return documents to a defendant/applicant. And of course, come day 21, in walk Arrow to the correct court and file a bankruptcy petition. Call me cynical perhaps....

 

With the amount of SD's I've seen just on this site in the last few days from this company, I make you right in everyway, this firm has stepped up its printing presses recently and knows exactly what its doing

 

S.

[NitrousOxide]

With the amount of SD's I've seen just on this site in the last few days from this company, I make you right in everyway, this firm has stepped up its printing presses recently and knows exactly what its doing

 

S.

Would be interesting if more people came forward with where it was served.

Thankfully Lorri seems to have noticed in time.

[42man]

Affadavit looks good.....!!

 

Costs need to be submitted 24 hours before the hearing......

 

Don't forget to take copies of your CCA request and get these sworn in at the court (with the recorded delivery slip).....make sure you have numbered the documents that you are referring to in the affadavit.....

[lorri-croft]

Thanks 42man for responding so quickly. Comments noted about copy documents as evidence.

SD was served last Weds 1/7 so I'll need to work on costs next. What's the procedure for submitting them? Is there a special form?

Also, can you give me a rough idea as to what would be reasonable to claim?

Thanks.

Lorri