Bankruptcy Hearing 13/11/2009

[ADAMJAMES2]

Hi

My Husband Is Due In Court For A Bankruptcy Hearing On The 13/11/2009 As I Have Dealt With This For Him I Will Be In Attendance...the Amount On The Petition Is 1722 This Has Since Been Reduced To 1197 As We Were Paying 100 Per Month On A Payment Plan...we Got Behind A Month Or Two So Contacted Thesolicitors Hollis Briggs Who Act On Behalf Of Go Debt....and Asked To Reduce It To £50 Per Month (my Husband Is Self Employed And Work Was A Little Dry) They Refused This And Went For Bankruptcy...this Upcoming Hearing Was Originally Set In March But Has Been Ajourned Three Times By Hollis Briggs As We Kept To The Plan.....

I Have Filed A 6.19 With The Court And Copies Of All Emails That Have Gone To And Throw Which Do Not Make Hollis Briggs Look Good As They Are Rude,threatening,unreasonable Etc Etc...

We Also Wrote A Detailed Explanation To The Judge

What I Was Wondering Is Can The Court Sort Out Repayment Offers...are We Likely To Be Bankrupt For This Amount...basically Anyone Out There Be Through Similar...any Reassuring Cases Welcomed...we Are Nervous But At The Same Time Believe Hopefully A Judge Will See Through This Greedy Lot...we Have Offered 50 Per Month Which We Think Is Quite Fair...any Advice...can The Judge Throw It Out...they Are Claiming 1800 Cost Despite Which We Believe They Will Try And Start A New Petition Over....

Thanks

Jenny

[42man]

Are there any excessive penatly charges that have been added to the debt ?

 

Did they carry out the process correctly with the bankruptcy petition ? How was it served on you ? Is their petition filled out properly ?

 

You need a good judge, make sure the petition was served and written correctly (in line with this High Court Judgment) Was the stat demand served properly ?

 

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

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

'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. The rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

[42man]

Do you have any kind of dispute at all ?

[42man]

I would also say that they are being VERY unreasonable in the current financial climate in not allowing your repayment proposals....(and if you have a half decent judge then he would agree with that)..

[42man]

I also believe by ajourning they are pumping up their costs deliberately....what was the time gap between the stat demand and the bankruptcy petition ?

[42man]

If there is any abuse of the process then you should ask for your costs, and get the petition thrown out....

[42man]

Have you submitted an affadavit ? or any witness statements as these have to be in at least 7 days before the hearing....

[ADAMJAMES2]

If there is any abuse of the process then you should ask for your costs, and get the petition thrown out....

 

we dont dispute the debt but their tactics are so vile.

 

i THREATENED TO BRING THE ACCOUNT UNDER 750 SO THEY COULD NOT PURSUE THE B/P (BLUFFING) AND THEY REFUSED TO TAKE ANY FURTHER PAYMENTS SAYING WE WERE TRYING TO GET OUT OF B/R...AFTER ADVISING THEM THEY WERE DUTY BOUND TO TAKE MY PAYMENTS THEY SAID THEY WOULD TAKE 100 PER MONTH BUT STILL WANT TO GO TO COURT TO GET THEIR COST ASSESED....COST THEY BROUGHT ON THEMSELVES BY ORIGINALLY REFUSING A REPAYMENT PLAN WHEN THIS ALL STARTED ONLY TO ACCEPT IT AFTER FILING PETITION THEN CONTINUOUSLY MOVING DATE RATHER THAN DISMISSING IT...I REALLY HOPE A JUDGE SEES THROUGH THIS ....BUT IS IT LIKELY THAT THEY WILL B/R US...IN MY 6.19 I STATED THAT SHOULD A COURT CONSIDER THE B/R I WOULD REQUEST TIME TO SORT AN IVA...

ANY ADVICE

JENNY

[42man]

I would take a very close look at the way the demand and petition were served too. You'd be surprised how many solicitors make basic mistakes....unless you get an incredibly friendly judge then he won't necessarily help you with the process....

[ADAMJAMES2]

If there is any abuse of the process then you should ask for your costs, and get the petition thrown out....

Itruly believe they are using the system to bump up there cost...if cost are awarded do you think i can ask the court to group it together and set a repayment plan based on the whole amount....otherwise i believe they will then start demanding this amount if its over 750,reject repayment offers and file all over again...

 

what cost could i claim against them if any...

cheers

[42man]

In order for a judge to officially set aside/dismiss, then it will either have to be under the £750 threshold, or you will have a substantial dispute, or there is an abuse of process, unfortunately being in a repayment plan itself is not enough excuse for a judge to set aside....although it would be frowned upon and be considered unreasonable....a judge who is not on your side would grant it....

[42man]

HHJ Peter Coulson QC sets out in Jacob v Vockrodt [2007] EWHC 2403 (QB) when petitioning is an abuse of process that could involve the tort of malicious presentation of a bankruptcy petition.

 

The key parts of the judgement on abuse of process are:

 

 

Mr. Davies relied on the well-known passage in the judgment of Harman J in Re a Company [1983] BCLC 492 in which he said:

 

"First, it is trite law that the Companies Court is not and should not be used as (despite the methods in fact often adopted) a debt-collecting court. The proper remedy for debt collecting is an execution upon a judgment, a distress, a garnishee order or some such procedure. On a petition in the Companies Court, in contrast with an ordinary action there is not a true lis between the petitioner and the company which they can deal with as they will. The true position is that a creditor petitioning the Companies Court is invoking a class right (see Re Crigglestone v. Coal Co. [1986] 2 Ch 327) and his petition must be governed by whether he is truly invoking that right on behalf of himself and all others of his class rateably, or whether he has some private purpose in view. It has long been an order that a petition presented for the purpose of putting pressure on the company is not properly presented: see Re a Company [1894] 2 Ch. 349 and, in a slightly different context, Re Bellador Silk Ltd. [1965] 1 All ER 667."

It is, of course, right that a bankruptcy petition must not be utilised where the petitioner knows that the debt is the subject of a bona fide dispute, but chooses to proceed with the petition in any event, so as to put illegitimate pressure on the other party to pay the debt. But the authorities cited above cannot be taken as authority for any wider principle or proposition. In my judgment, the correct approach to the facts, in a situation where the petition has failed and it is subsequently suggested that the presentation was malicious, was that applied in Partizan Ltd v OJ Kilkenny & Co Ltd [1998] 1 BCLC 157 by Rimer J, when he concluded at page 173:

 

"It follows that I am not satisfied that, when it presented the petition, Kilkenny was moved by notice or considerations different in any way from those which ordinarily motivate creditors who petition to wind up a company on the grounds that a debt claimed to be due to them (not being one which is regarded by the petitioner as disputed on substantial grounds) is unpaid despite demand; namely, at least an element of hope that, if the company can pay the debt despite its previous failure to do so, it will pay it and, if it cannot do so, a hope and expectation that it will be placed in liquidation so that there can be an orderly realisation of its assets for the benefit of its creditors generally."

What the cases show (and the point I take Rimer J to be addressing by the phrase in brackets in the quotation from his judgment set out above), is that the presentation of a petition is an abuse of process only if the petitioner knows or believes that the debt is in truth the subject of a substantial dispute.

[42man]

It might also be worth quoting the above case to the judge too....

 

As for your costs have a look here

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/211818-lowell-hampton-statutory-demand-3.html#post2337865

 

LIP means Litigant In Person costs which is what you should claim....(unless of course you have a solicitor with you)

[42man]

Quote this to the judge...

 

Mr. Davies relied on the well-known passage in the judgment of Harman J in Re a Company [1983] BCLC 492 in which he said:

"First, it is trite law that the Companies Court is not and should not be used as (despite the methods in fact often adopted) a debt-collecting court. The proper remedy for debt collecting is an execution upon a judgment, a distress, a garnishee order or some such procedure

[angel_1]

HIYA all

 

what an awful situation you find yourself in and fab info from 42man ive learnt yet again something useful for myself now too

 

wishing you luck and keep positive have subbed to your thread

 

laters angel x

[ADAMJAMES2]

If we take a chance and pay nothing before hearing and the worse happens and some idiot judge grants the petition...would we be able at hearing to offer to bring it below 750 there and then or is it to late at that stage

if we were made bankrupt still is there a period in which to settle the debt and still be able to get it annulled.

the thing that gets me is that this company will gain nothing through b/r my husband our house is in negative equity,we have no assets...plus as the petition is in his name only available to the official receiver is precisely 50% of nothing......should i point this out to the judge

tomorrow i am taking down to the court all the emails sent to us by the **** bags a letter of defence and a 6.19 form (and now that excellent judgement 42 man...thankyou...)

I keep thinking surely no judge will grant this but i'm just worried how it goes on the day.....many thanks for any answers to my points....

jenny

[ADAMJAMES2]

any answers anyone or thoughts....this is really affecting mine and my husbands health...i have constant butterflies the petition is not in my name but being his wife etc it would still affect me and my children

thanks

[42man]

Your defence MUST be an affadavit....like this. (it also needs to be sworn in at the court) If need be then a witness statement also needs to be included....you either need a good and understanding judge, or you need to look at a potential abuse of process....

 

AFFIDAVIT

I (name) of (address), (occupation)

MAKE OATH and say as follows:

____________________________________

Signature

SWORN AT (address)

this day of year

before me,

____________________________________

(A Solicitor or Commissioner for Oaths)

[42man]

In answer to your question on the £750, you need to have reduced the amount to below this threadhold before the hearing.

[palomino]

Just to clarify ... Once you are declared bankrupt then it happens at that instant. The financial situation is that applying then.

Once you are declared bankrupt the Official Receiver takes on all your debts and all your assets. He will want to realise your assets in order to satisfy your debts.

It seems Hollis Briggs have somehow come to the view that you have sufficient assets to pay off your debt to them - as well as all their costs. Don't forget that their court costs of bringing the action in order to declare you bankrupt are very much higher than you making your own petition. Add on their own fees and you can come to quite a large amount.

 

Do you own your own home? Or at least have some equity in it? If you have then it seems rather odd that HB haven't applied for a charging order.

[ADAMJAMES2]

Just to clarify ... Once you are declared bankrupt then it happens at that instant. The financial situation is that applying then.

Once you are declared bankrupt the Official Receiver takes on all your debts and all your assets. He will want to realise your assets in order to satisfy your debts.

It seems Hollis Briggs have somehow come to the view that you have sufficient assets to pay off your debt to them - as well as all their costs. Don't forget that their court costs of bringing the action in order to declare you bankrupt are very much higher than you making your own petition. Add on their own fees and you can come to quite a large amount.

 

Do you own your own home? Or at least have some equity in it? If you have then it seems rather odd that HB haven't applied for a charging order.

 

hi we do own our home but its in negative equity at present with already two leans on the property totalling about 1500

the house is in my and my husbands name but the petition is only in his name

h/b stand to gain nothing from this and i cant believe a judge would order it....ironically these people will not accept 50 per month on a 1197 debt yet today a creditor who we owe £13000 has accepted 25 p/m....crazy

[Hestia]

Hi, have you heard anymore?

 

Best of luck for the hearing and please keep posting what happens.

[Belaflat]

hi we do own our home but its in negative equity at present with already two leans on the property totalling about 1500

the house is in my and my husbands name but the petition is only in his name

h/b stand to gain nothing from this and i cant believe a judge would order it....ironically these people will not accept 50 per month on a 1197 debt yet today a creditor who we owe £13000 has accepted 25 p/m....crazy

 

To be fair, with debts such as the one you stated above, negative equity and no assets, Bankruptcy would not be such a bad thing unless there are other factors you havn't mentioned. Are there any business assets that could be affected.

I am not saying you should go ahead and let it happen if that's not what you want but remember that if you are made BR, then ALL other debts would be included too, not just the one being petitioned for.

[ADAMJAMES2]

To be fair, with debts such as the one you stated above, negative equity and no assets, Bankruptcy would not be such a bad thing unless there are other factors you havn't mentioned. Are there any business assets that could be affected.

I am not saying you should go ahead and let it happen if that's not what you want but remember that if you are made BR, then ALL other debts would be included too, not just the one being petitioned for.

 

hi

yeah we are inclined to agree...all we wonder is does it affect the mortgage?? i mean its a joint mortgage but hubby is the earner....even if the official receiver does not take the house (50% of nothing) will the mortgage company allow my husband to keep the mortgage as a bankrupt or dont they care as long as the mortgage is paid.....

we are dwindling whether to pay 400 b4 friday to get it under 750 but they may still apply for their cost taking it back over 750 and then knowing these ruthless idiots will start a whole new petition.....what are the chances the judge will see hollis briggs as unreasonable and dismiss it and their cost this will be the third date for hearing as h briggs have ajourned twice already

cheers any advice

 

ps just in case we are clearing the bank account thursday lol

[caledfwlch]

Do you have written or recorded evidence that they refused to take payments in order to keep the balance high enough to bankrupt you?

 

I could see a judge taking an EXTREMELY dim view of that.