MBNA are trying to make me bankrupt

[42man]

Post #11

[00765]

Below is how i have laid out my affidavit, Sorry it's rather rushed as i'm wary that it needs to be lodged today & i have to go to work. Do you think it's OK now

Draft

Affidavit in Support of Application to Set Aside Statutory Demand

1. The alleged debt is totally disputed

 

 

The alleged creditor has not provided a valid notice of assignment

I believe any alleged agreement is unenforceable

 

 

The alleged creditor has not provided a legible copy of the agreement that contains the prescribed terms and is executed.

 

The alleged creditor has not provided any compliant default notice as required by the Consumer Credit Act 1974

 

The alleged creditor has not provided any statements for the duration of the account (it not being uncommon that some debts are made up entirely of excessive charges)

 

The alleged creditor has not provided any proof that the alleged debt has been securitised under English law. 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 Capquest. 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) – 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

 

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 bankruptcy petition was issued.

DEFAULT NOTICE

 

 

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 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 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
  

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

 

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

 

[42man]

Edit this and add -

 

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 also request the judge order the alleged claimant to remove any adverse data on my credit files.

 

I also request the judge consider making an indemnity award in light of the upset and inconvenience that this has caused me and my family.

 

I also make the request that the judge orders a bankruptcy restraining order against the alleged creditor

 

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.

[42man]

Costs need to be sent in to the court so they are in the file at least 24 hours before the hearing....

[00765]

Thank you 42man, your input is invaluable. I've been so nervous about this, that I’ve just not been able to clear my head to think straight & compose an acceptable affidavit. Your comments & suggestions at such short notice, are greatly appreciated

I have made the additions and will shortly be headed for the court.

I'll keep you posted as to the progress

[42man]

You also need to change this to "statutory demand" as this isn't at petition stage...

 

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 bankruptcy petition was issued

[00765]

Hello everyone,

 

sorry for delay in providing an update. i've been consummed with other credit card companies demanding i repay huge balances.

 

But getting back to this set aside, the court has set a hearing date for early 2010. Thank you to all of you on this thread for your kind assistance particularly 42man. Of course the battle is not won, that stage will, i assume begin in early 2010.

 

Also Arrow have not responded to me letter (sent during the latter part of September 2009) re s78(1) of the Consumer Credit Act asking for copies of the original agreement etc.

 

Is there anything i need to do between now and the court hearing?

 

Thanks again, i will keep you all informed as to the progress

[ifoughtthelaw]

subbing - good advice

[00765]

A VERY HAPPY NEW YEAR to everyone.

 

My set aside hearing is in a few days.

 

Arrow have not responsed to my CCA request letter. Is this enough for the judge to allow my set aside request?

 

Does anyone kindly have any advice as to what i should be saying at the hearing? I getting increasingly nervous as the court day draws nearer!

 

Thanks

[lilly white]

no agreedment you will win

[00765]

Morning, just trying to calm myself for today's hearing & to that end, I’ve been reading thru my affidavit, just in case the judge refers to it & asks me questions. If the judge asks me why I believe any alleged agreement is unenforceable is my response........because no agreement provided, no compliant default notice provided? Thanks

[Capricorn1601]

good luck and let us all know how you get on

 

 

May the Force (of CAG) be with you!

[00765]

Thanks Capricorn 1601.

I've just returned from court & I feel like I got a mixed message from the judge.

1stly Arrow Global were not in attendance.

2nd the judge told me that Arrow had written to the court to themselves, ask that the statutory demand be set aside. The judge also told me that Arrow had written to me in October 2009 at my previous address. I explained to the judge that when I sent my SAR letter to Arrow in September 2009, I had clearly stipulated my current address. The judge acknowledged this comment noting that, they could see on the file that Arrow had mentioned my current address in their correspondence to the court, yet wrote to me at my previous address.

The judge inquired from me, if I had sought legal advice from a lawyer. I replied, just a little from a friend (CAG) didn’t tell the judge that!

The judge advised me to go get legal advice. Why would the judge b giving me such advice when they have just told me that Arrow themselves requested stopped the statutory demand?

Any ideas as to what I should now expect from Arrow?

The judge ordered that Arrow pay me whatever I may have paid to lodge my request for a set-aside. I was so nervous & confused that I forgot that I had not in fact paid for the set-aside application & foolishly failed to ask for costs.

So not sure if this was calm before the storm or a straight up small victory.

Either way, thanks to all of you on this thread for your speedy & priceless advice to date.

[mandyjayne]

Hi 00

 

Excellent news for you...when i was up against Arrow they showed up..!

 

Well dont worry...its set aside now they will have to persue you with a ccj if they want to continue...bit of a long shot but if they do you can set aside just as easily...my hearing was today at 2 for SD set aside...i was not so lucky and mine has been ajourned, so more worrying times for me and the other side showed as they always seem to do (3 times)

 

Go have a large drink and relax for yours is prob over!

 

MJ:)

[Capricorn1601]

Well done 00765. I personally dont have any experience of the courts.. yet, but would hazard a guess that the judge was erring on the side of caution. Going back to one of the earlier notes on this thread, one person did say that they could be bluffing. I would interpret their action today as bluffing and trying to scare you into paying.

[Mydogsawestie]

excellent thread, subbing with interest from the knowledge of caggers that have posted & well done 00765 - Sorry Mandyjane to hear of your further bad news....keep positive

[00765]

mandyjayne I wish u every good fortune with your battle. Hopefully this was one down, eight more credit card companies to go. I think i'll take you up on the large drink!

 

Thanks too Capricorn1601 for your kind words