Arrow Global Statutory Demand

[yampy1]

Like others, I have been served (by hand) a Statutory Notice (under Section 268 of the Insolvency Act) by tArrow (a DCA) in relation to a debt to Virgin C/Card.

 

I would like to apply to have it the statutory demand set aside and from what I have read I would be well advised to issue a request to Arrow under the CCA about charges and the original agreement.

 

My question is should I apply direct to Arrow for further details-challenging them under the CCA, or should I be formally applying to the court to have the Statutory Demand set aside, using the Court forms 6.5 and 6.5. Also when using the forms do they both have to be signed by a solicitor or can I just complete them myself and send them in to the court? Maybe I should both write to Arrow AND file the docs to the court??

 

I understand that this action is probably a "shot across the bows" by Arrow, but its still significant and worrying. I also understand that the courts are not keen on this gung-ho tactic in the absence of a CCJ, which Arrow have not applied for in this case.

[lilly white]

How to complete the forms

6.4:

 

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from xxxxxx) be set aside

 

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the affidavit of the applicant sworn on (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of xxxxxxxx For (e)

 

The applicant’s address for service is: (e) (insert your name and address)

 

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

Form 6.5

 

For (a) fill in your name and address and state that you are a litigant in person.

 

For (b)

1. That on (b) (insert date that you received the SD through the post) the statutory demand exhibited hereto and marked 'A' came into my hands

 

For ©

2. that I © Do not admit the debt because the alleged debt is totally disputed.

 

The alleged creditor has not provided any proof whatsoever that the alleged debt is not time barred by the Statute Of Limitations Act 1980

 

The alleged creditor states that the amount is owed under an agreement which has not been provided

 

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.

 

The alleged creditor has not provided any notices of assignment.

 

The alleged creditor has not 'served' anything on me, but simply posted a demand by first class - I believe that this is a frivolous attempt at scaring me into paying and therefore an abuse of the process.

 

I refer to:

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

 

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).

j) In respect of judgment of Mr Justice Warren as set out above the applicant avers that there is a clear dispute in relation to this debt and furthermore the respondent has been made aware of the matters complained of and despite this a statutory demand was issued

 

I make this statement with the sworn belief that all facts stated are true.

 

OK EDIT TO SUIT

[lilly white]

HAVE A READ

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/162131-statutory-demands-service-post.html

[Baggio]

would you have to write that all out by hand and then hand deliver to your court?

[lilly white]

The Assignment of the Debt

 

 

19. If the Claimant was not Sainsburys Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. 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.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

EDIT TO SUIT

[lilly white]

Sums Claimed

 

 

26. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing

[lilly white]

Default Notice

 

10. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me.

 

 

12. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the 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 2006 (SI 2006/3094).

 

 

13. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

 

14. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

 

15. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

16. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

 

“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; or if not, the next business day after that day.”

 

 

17. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

 

18. For the avoidance of any doubt, in the event of an alleged breach by the Debtor 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.

[lilly white]

agreedment

 

 

 

 

It is not accepted that a Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

 

7. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

 

8. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

9. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

 

 

[yampy1]

My question is should I apply direct to Arrow for further details-challenging them under the CCA, or should I be formally applying to the court to have the Statutory Demand set aside, using the Court forms 6.5 and 6.5. Also when using the forms do they both have to be signed by a solicitor or can I just complete them myself and send them in to the court? Maybe I should both write to Arrow AND file the docs to the court??

[Docman]

Yampy

 

Arrow are using a quirk in the legal system to circumvent the Consumer Credit Act. They are using the Insolvency Rules and Act which are effecively based on Victorian bankruptcy legislation. In those days, when you claimed someone owed you money, the bankrputcy law required you to claim the money from your debtor in a formal way (the Statutory Demand or SD). Failure by a debtor to respond to a SD then allowed the creditor to bring a claim to court, even though there may be no documentary evidence of the debt. Failure to respond to the SD was sufficient grounds to bring a petition to make the debtor bankrupt.

 

Today, we have various statutes to deal with debt, in particular the Consumer Credit Act. It seems Arrow often do not have the documents to enforce a claim under the CCA and have looked to the Insolvency Rules to bring pressure to bear on people to pay up. Snag for any debtor is the short time scale to respond to a SD otherwise you run a real risk of a bankruptcy petition.

 

IMO you should make an application to your local court in the way outlined above. Do NOT delay or wait for any response from Arrow. As far as I know, you can make the application yourself on the official forms. Once you have made the application, then you can think about writing to Arrow for documentation.

[RosaofEdge]

Check also if they named the right court in the statutory demand.

 

The SD stated us that the court to apply to to set aside the SD was a local county court but in most of London it's the Royal Courts of Justice in the Strand that has bankruptcy jurisdiction.

 

Apply to the correct court (phone up and check that the one name has Bankruptcy jurisdiction) but naming the wrong court may be another thing that could invalidate a SD.

 

BTW There is no fee to apply to set aside a stat demand and you can and should ask for your costs if successful. Providing you have an argument to set aside I think this is a tactic that could backfire on them if they use it a lot. They will be paying out for process servers and will go down for their costs against a successful set aside application. Make 'em pay!

Edited August 30, 2009 by RosaofEdge

[yampy1]

Thanks all for your contributions, I have lodged an application at the C.Court to set aside the Stat Demand (SD)

Nothing herd back just yet but I will update when I hear anything.

[yampy1]

Hi All,

 

Further to this. I have had the case transferred to my local court and it is due to be heard next week in a scheduled 5 minute hearing before the Judge.

 

Im a bit worried that my grounds for setting aside the (hand delivered) SD as I now think the case I gave in my set-aside documentation was weak.

 

Basically I said that I have an exisiting agreement set up to service the debt at (£6K) at & £75 per month (as agreed with Payplan) and that because I am servicing the debt there is no need for bankruptcy. I also asked that the court note there has been no CCJ, my implication being that Arrow are using the Bankruptcy rules innapropriately (not sure if this angle has any mileage though)

 

Arrow have responded to me and the court by saying that as far as they are concerned there is no agreement, although they have accepted payments and were sent a statement of means by recorded delivery.

 

Does anyone have any advice regarding appearing in court and my grounds for set aside? Five mins is not long and I will need my wits about me.

 

Incidentally I have alreaduy been advised that it would be hard to press for Bankruptcy as I have assets that I am currently realising to pay off my creditirs (house sale) these are greater than the amount owed. Would this impact on my case for setting aside the SD as well?

 

THanks all and as usual thanks to the CAG generally.

[mandyjayne]

what happened at the set aside??