AMEX/Copes looking to make my partner bankrupt **WON - STATUTORY DEMAND SET ASIDE**

[jessie_girl6]

Hello all

 

I've been reading the posts for some time and have now gotten the confidence to make my first post, in the hope someone out there can help. Otherwise, my partner will be made bankrupt and we will loose all that we've worked for over the last 30 years.

 

Today, he received a Statutory Demand that was delivered by hand by a process server, relating to an Amex Credit Card agreement. Now, having read a few things about SDs, I believe that

1) this has been properly served

2) the amount requested (c. £18K) is probably about right (give or take a few 100 pds) so I don't feel I can query that

3) we haven't done anything like a SAR or CCA as we accept that the debt is owed

3) Copes are very serious about moving down the bankruptcy route as they have already told our Debt Management case officer that we own our home and that it has equity in it to cover the debt (true).

 

Just to put a few things in perspective:

1) We do have equity in our home which is why we are currently trying to sell it to repay all our debtors. However, we are getting very few viewings and no offers

2) We have been accepted on a DMP with one of the 'free' and very helpful organisations. They have been trying to talk with Copes regarding a repayment strategy, but are getting nowhere. We have been making payments via our DMP to Amex for the last 3 months.

3) Because we can't release the equity, we are now looking to rent out and go live with friends in the short term, so that we can raise our repayment amounts to all creditors.

4) We absolutely have no way of paying the £18K that Amex/Copes require.

 

I don't feel that we can successfully get the SD set aside, so my question is what can you do to stop a creditor making you bankrupt via the SD route? Is there any legalise that we could use? I know that we can repay this over (a very long!) time but can't seem to get Copes to agree to this.

 

I think that Copes will want to put a charge over our home, and I absolutely do not want to give them that sort of power, whereby they could make us homeless. Can I say no to that and push a repayment plan?

 

Has anyone out there been in this position?

 

Any thoughts most welcome

[cerberusalert]

You should send a SAR to Amex to determine whether the agreement is enforceable and to determine whether there are any unfair charges which you can reclaim. If there are you could apply to have the SD set aside because they will be claiming the wrong amount. http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

Also send a CCA request to Copes http://www.consumerforums.com/resources/templates-library/86-debt-collectors/581-cca-request-letter they have 12 working days from receipt to provide it. If the CCA is unenforceable you can use that to get the SD set aside.

[cerberusalert]

Have they sent you a Default Notice & a Termination Notice for this a/c.?

[jessie_girl6]

Hi there

 

Yes, I've just checked the paperwork and they served a DN on 2 April asking for a sum of £744 within 14 days and they then cancelled the agreement on 1 May.

 

It's because I think they've actually done everything by the book that I am really frigtened about the bankruptcy issue.

 

Also, is it OK to CCA and SAR AFTER they've issue the SD?

[cerberusalert]

Can you scan the default notice & post it up after removing identifying information?

[cerberusalert]

The reason I ask is because a DN must be in a prescibed format and contain certain terms. If it states that the default has to be remedied within 14 days of the date of the notice it is defective & now they have terminated the a/c it is called unlawful rescission of contract. This means all they can legally claim are the arrears the balance has to be written off.

[cerberusalert]

Still send the SAR & CCA the more ammunition against them the better.

[jessie_girl6]

Wow - there's me going through all these emails, posts, web pages and loads of sleepless nights - and there you are with a potential solution within 5 mins!

 

THANK YOU SO MUCH!

 

I will get the DN scanned in tomorrow and hopefully you can advise from there.

 

Already feeling better - I'm having to keep most of this from my partner as he has been sufferring and saying silly things. Would be good to see him smile again.

[Monty2007]

Hi JG

 

I am sure that the SD can be set aside, you need to look at some of the other cases and alert the site team. It is important to act quickly.

 

There is also a lot of expertise on CAG with regards to Amex, all their tricks have been tested, and fallen short.

 

You must:

 

1. Submit a SAR as soon as possible. Use the template letter from here and send the letter + £10 via Guaranteed Next Day Delivery. They may well drag their heels so don't rely on a quick response to this but the data and information will be useful later.

 

2. Submit a S78(1) request for a copy of your agreement, depending on when the account was opened it could be invalid. Can you clarify when it was opened?

 

3. Post up both the Default Notice and Termination Letter minus any personal details, they may have been incorrectly served.

 

Amex are beatable and be in no doubt about that. Read all the Amex threads and become familiar with the approaches and arguments.

[cerberusalert]

I wish everyone kept their paperwork, it makes things so much easier.

[42man]

If it was me I would attempt to get this set aside, nobody should be forced into bankruptcy, and in general the judiciary do not like the court system being used as a debt collection tool.. It would seem they are serious and Amex do go for bankruptcies. Firstly I would send off a request for a copy of your agreement (were these credit cards ? as opposed to charge cards ? How old are they ?) You need to send this letter here by recorded delivery and enclose a £1 postal order (don't hand sign it) and send this to Amex - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/581-cca-request-letter

 

You've got 18 days from when you received the demand to set it aside you need to use froms 6.4 and 6.5 (set aside and affadavit) which you can find here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

The good news is that the default notice seems to be a duff one !! unless they hand delivered the letter on the day they typed the letter then, then how can you possibly comply with a default notice within 14 days.

 

The other aspect is does the agreement contain the prescribed terms on the signature page ? This you should be able to find out when they send your agreements, however if they don't send them within 12+2 working days of your CCA request then they are in default and whilst in default they cannot enforce...

 

As for the SAR, they have to comply with this in 40 calendar days.

 

Have a read of this thread - http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html

 

Apart from anything else I imagine there are some significant excessive penalty charges that have been added to the accounts also...

 

If you are in a debt management plan and Amex are NOT prepared to accept this then they are being unreasonable...Please report them to the OFT and this chap below

 

This is what Gareth Thomas - Who is Undersecretary Of State For Trade And Consumer Affairs said in a letter to CAG recently

 

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. " - The same will apply to Amex too....

 

And try and understand what is being said here -

 

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.

[42man]

Moving to legal issues forum....

[42man]

Once you have filled out the 6.4 and 6.5 you need to take them to your local county court with the original of the demand (keep a copy for yourself) (is your local county court named on your demand ?) Just ring them first to check whether they handle bankruptcies/insolvencies, it has been known for some solicitors/debt companies to put an incorrect court name on a demand as not all county courts handle bankruptcies....(this could be seen as a potential abuse of the process)

 

Once at the court you need to ask them to swear in your affadavit and any accompanying paperwork (such as your CCA request and recorded delivery slip for example) Most county courts will do this for free, a local solicitor will charge you around £5 to do this, and central London courts I believe charge £12.

 

Please also do have a good read through here at some of the other stat demand cases, and if you're not sure of anything please shout - DCA Legal Successes - The Consumer Forums

[jessie_girl6]

Thanks for the info - I'll be sending out the 2 letters today.

 

In the meanwhile I am attaching the DN and Cancellation notices I have re this account. I'm hoping that there may be something wrong with the DN.

 

There have been some different figures bandied around but the amount on the SD of £18,993.02 has had the referral fee of £3K+ removed.

AMEX DN - 2009_04_02.pdf

AMEX DN Sums - 2009_04_29.pdf

AMEX Cancellation - 2009_05_01.pdf

[cerberusalert]

That's a good start, the DN is defective. All you need now is a duff CCA.

[jessie_girl6]

Could you please explain a bit more as to why the DN is defective?

 

And from what I'm reading, if that is defective, then they shouldn't have terminated the account. So where does that leave us?

 

Thanks

[cerberusalert]

They have to give you a clear 14 days to remedy the default from receipt of the notice not from when the notice is dated, unless it was hand delivered on the day it was composed. So, you have to take into account the postage time which if it was sent second class would be considered as 4 days, first class is two days. Either way they didn't allow you enough time. Then there is the matter of the way it is worded, leglislation states that they must stipulate a date to remedy which must not be less than 14 days. They mentioned the 14 days but not the date to remedy by.

 

Now that they've terminated the a/c, it is unlawful rescission of contract which means the amount they can legally claim are the arrears. The remaining balance now has to be written off. They cannot legally pursue you for the balance.

[jessie_girl6]

Thank you - I understand what you are saying.

 

One more question: we have continued to pay minimal amounts to Amex, then Newmans and now Copes via the DMP as we have never disputed the debt. How would this be viewed? Is this an indication that we admit the full debt? Or does the invalid DN and termination override this?

 

I will research the Unlawful Rescission of Contract from the forum.

[lilly white]

Has the SD been issue by Copes on behalf of Amex?

1/ Do you have any charges or PP1

2/ How old is the allged debt

I see that you have sent for your CCA 12 plus 2 days account in default

Also I see that you have SAR Amex all details required statements CCA.

Ok I have read the Default situation well done

[lilly white]

Thank you - I understand what you are saying.

 

One more question: we have continued to pay minimal amounts to Amex, then Newmans and now Copes via the DMP as we have never disputed the debt. How would this be viewed? Is this an indication that we admit the full debt? Or does the invalid DN and termination override this?

 

I will research the Unlawful Rescission of Contract from the forum.[/quote

 

 

As they have the temerity to issue a SD when you where making all efforts

Speak volumes from now on the alleged debt is totally disputed

[jessie_girl6]

Hi LillyWhite

 

The SD says that the demand has been served on us by the creditor (Amex) and gives its address in Brighton, but it has been issued by Vicky Hanson of Copes Solicitors.

 

Copes sent a letter saying that their client "as a gesture of goodwill at this stage has waived the referral fee". So it isn't included in the amount on the SD. Isn't that sweet of them?

 

There wasn't any PPI on this - it was a credit card agreement. I need to review what interest was applied when, but we haven't had any statements since April 2009, when they terminated the agreement, so I don't yet know what has been happening to the account since then. Hopefully the SAR will make this clear.

 

The SD said that the account was obtained on 1 Dec 2005, and I think that that date is correct.

 

Does that help?

[lilly white]

Yes 2005 is important because it is pre 2007, which is to do with the the consumer credit act

 

Have a read stolen from brw

The importance of an Original Copy of the Credit Agreement and its production before the Court

 

59. Under the Consumer Credit Act 1974 there are certain conditions laid down by Parliament which must be complied with if such an Agreement is to be enforced by the Courts (for Agreements pre Consumer Credit Act 2006).

 

60. Firstly, the Agreement must contain certain Prescribed Terms under regulations made by the Secretary of State as outlined in Section 60(1) of the Consumer Credit Act 1974. The regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

61. The Prescribed Terms are contained in schedule 6 Column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are as follows:

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, a term stating the rate of any interest on the credit to be provided under the Agreement and a term stating how the Debtor is to discharge his obligations under the Agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

Number of repayments;

Amount of repayments;

Frequency and timing of repayments;

Dates of repayments;

The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

62. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the Agreement, then the Court is precluded from enforcing the Agreement. The Prescribed Terms must be within the Agreement for it to be compliant with Section 60(1) Consumer Credit Act 1974. In addition, there is case law from the Court of Appeal which confirms the Prescribed Terms must be contained within the body of the Agreement and not in a separate document.

 

63. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer Credit Agreements". Some of this information mirrors the terms prescribed by Schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

“33 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 (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(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. More detailed requirements, which are designed to ensure that the Debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

64. If the Agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) of the Consumer Credit Act 1974, the consequences of which means it is improperly executed and only enforceable by Court order.

 

[jessie_girl6]

OK - so it is important that this CCA comes back to me asap so that I can check its validity. Can't wait

 

Should we still be making payments though?

Should we still be trying to agree terms with Copes?

Or should we stop now because we believe the agreement to be null and void?

[lilly white]

Well it is a call.

May I ask has this been confirmed then? The dmp.

If so then, it would be wise to, continue for the moment.

Once we see the CCA we will make a call

[jessie_girl6]

We're definitely in the DMP with Payplan and have made 3 monthly payments to our creditors through them. However, because they have only just sent out financial statements, none of our creditors have yet agreed to the proposed repayment schedule. So I guess you could say that we are not 'officially' on a DMP with Amex yet.