Stat Demand served by Lowell Portfolio Ltd - URGENT *** WON + COSTS ***

[mowbli]

Hi All,

 

I arrived home from work on the 13th May and was handed a Stat Demand for my wife by a process server. I've been reading like crazy on the forum and think I'm pretty safe but wanted to get some other opinions. Here are my thoughts/questions:

 

1. Can a process server serve the notice on me and ask me to pass it on to my wife? (He did ask if she lived at the address)

2. The Stat Demand has been served by the creditor Lowell Portfolio I Ltd and was assigned to them by SAV Credit Ltd last year who are listed in Part C as the original creditor. The original account was actually with HFC (Marbles) and they are not mentioned at all on the Stat Demand. Does this invalidate it? Obviously, no supporting paperwork was supplied such as the notice of assignment etc...

3. The amount claimed (>£12k) is higher than the amount on the origianl (invalid) default notice sent by Marbles.

 

Is my best course of action to apply for it to be set aside on the grounds that my wife has no idea who the creditor is (although the card number is written in the Particulars of Debt)?

 

Alternatively, should we apply to have it set aside on a longer reasoning based on the fact that the original creidtor didn't have a valid CCA or default notice (both of which I have).

 

I have already sent a CCA request and received a copy of an invalid agreement from Marbles and have kept the original default notice which is also invalid (only gives 14 days to remedy)

 

My objective is to keep this as simple as possible as my wife will struggle to stand up in court and provide a complex defence.

 

All thoughts appreciated, my wife will have to apply for this to be set aside on Friday at the latest.

 

Mowbli

[cerberusalert]

Moved to legal Forum.

[unclebulgaria67]

I don't think they are allowed to serve a SD on the spouse of the debtor. You might not have been aware of the debt. Just because you live at the same address, it cannot be assumed you would pass on the SD to your wife. From what I have read, under the Insolvency act they have to serve the SD in person or serve to the debtors business if related to business ownership or to the debtors appointed legal representative.

 

Best advice in this situation, is to gain legal help with the set aside process, so that you do this correctly. Needs to be submitted to court within the 14 days.

 

This link is for a helpful guide from the insolvencyhelpline. Legal Issues Explained - Statutory Demand

 

Depending on your financial positions, you might quality for legal assistance. Contact Community Legal Advice - free legal advice for residents of England and Wales, paid for by legal aid

 

These are the forms required which need to be completed and sworn in, in person by your wife at the court.

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf

 

 

This is a previous CAG thread on SD's. http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/112326-dcas-statutory-demands-few.html

[bazaar]

You need to start getting organised to fight this,

I would SAR the Original Creditor for Satements and the agreement etc,

Then you'll be able to see what theyve charged in the way of penalty fees etc. Also, this will give you the amount owing at the time they sold it on, You'll then have an idea just what the divvies at lowells have lumped on.

 

At the moment there is no Court involvement, its just them trying to frighten you into coughing up.

So start getting your sh** together, IE, wrongly served notice ( issued incorrectly), and default notices etc..

You obviously will be disputing this debt, so thats first,

If theyve failed to follow the CPR, they have prejudiced you.

You need to get a set aside in place after 18 days.

[mowbli]

Hi,

 

Thanks for your prompt responses. The 18 days expires on Friday 28th May as the origianl letter was dated 10th May (although only served on 13th)

 

I'd really like to know if I should just simply be applying to set it aside whilst we investigate who the creditor is (as the original creditor is HFC but they aren't mentioned on the SD) or if we should apply for it to be set aside for more complex reasons as stated above...

 

Thanks

 

Mowbli

[bazaar]

Just remember that Monday is a bank holiday, so you should submit this before Friday IMO, Its normal for these cretins to time these things to make it difficult for you.

[unclebulgaria67]

Here is another Lowell thread concerning an SD.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/255320-lowells-hamptons-statutory-demand.html

 

Next stage is to make a request to Lowell under CPR 31.14 for disclosure of information. You could also ask for a copy of the notice of assignment to show that they have the legal right to pursue the matter in court.

 

You also need to send the acknowledgement to the court.

 

Although the SD was not correctly served, apparently a court will not always set aside purely on that basis. You need to flesh out more of an argument, which is why is might be best to obtain proper legal advice.

[mowbli]

Thanks Bazaar, that's why I'm keen to get a steer on which approach to take with the set aside... Planning to go to the court on Friday to hand it in...

[42man]

Unfortunately you cannot use CPR31.14 for statutory demands / bankruptices as these are governed by the Insolvency Law and not the Civil Laws...

[mowbli]

If I'm going to use the long reasoning, I have already CCA'd Marbles and received the (unenforcable) agreement and have a copy of the (invalid) DN. So, do I need to take out the parts about the CCA or do I need to CCA Lowells now and keep those paragraphs in? If I send CCA 1 day before giving 6.4 &6.5 to court, should I remove the part about them being in default (as they are not yet in default)?

 

Getting really confused now!

 

The Defendant totally disputes the debt.

 

The alleged creditor has not provided a valid notice of assignment

 

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 ******* via recorded delivery on the ********** (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 demand 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

 

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'll insert my own costs paragraph...

 

 

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).

 

Thank everyone for any help you can give... I feel another late night on it's way!

[42man]

Have a read of this one - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/260863-statutory-demand-cap-quest.html

[42man]

And you might find this useful on the default aspect...

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

1. This Statement of Evidence is filed pursuant to CPR Part 24.5(1).

2. Notwithstanding the matters pleaded earlier, 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.

 

3. 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.

 

4. In a Practice Direction made by J R BICKFORD SMITH Senior Master

Queen's Bench Division Practice Direction, dated 8 March 1985, it says

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.

5. Further to point 3 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.

 

5. The Default Notice supplied by the Claimant (attached as annex 1) is dated (Tuesday) 19 June 2007, 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 Thursday 21 June, namely Thursday 5 July 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been Tuesday 3 July. The Default Notice does not allow the statutory 14 clear days for me to remedy the breach.

 

6. 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).

 

7. The failure of a Default Notice to comply with all these regulations 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.

 

8. It is submitted that the Default Notice served under s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

9. 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.

 

10. 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…

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.

 

[42man]

If there is no mention of assignment on the particulars of the claim...you simply state that the claimant denies having any relationship with the defendant and that there has been no legal assignment of any kind !!!

[mowbli]

42man, what a speedy respone - THANK YOU!

 

The reason the Default was invalid is because it only gave 14 days to rectify - do you think this is a strong enough reason?

 

Section C of the SD does detail Lowell Portfolio Ltd as the assignees, however it states that SAV Credit Limited was the original creditor when in fact it was HFC (HSBC I think) until SAV bought the Marbles card from them in 2007 - shouldn't that also be an assignment?

 

I'm really keen to try and keep this as simple as possible as my wife will need to attend the court hearing and she will not be able to defend a complex case. I was hoping to work on the basis that I don't recognise SAV credit or Lowell Portfolio Ltd and as they have supplied no information attached with the SD other than an account number in the Particulars of Debt I have no way of knowing who they are?

 

Is my head in the clouds here?

[mandyjayne]

Do whatever 42man advises, he knows the SD set aside believe me!

 

Read from here on my thread, http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/195656-egg-barclays-lowells-sd-3.html#post2448000...the reason for set aside in the form of the defence you have, is the one i used.

 

MJ:)

[mowbli]

Thanks mandyjayne, my concern is that it may be far simpler to state that I don't recognise SAV Credit (as they weren't the original creditor as stated on the SD) and as they have supplied no further information such as NOA, DN, CCA etc, I have no basis to defend the claim... I think this is an embarrassed defence but not sure.

 

Would really appreciate some speedy help as I only have tonight and tomorrow to get everything filled in ready to give to the court on Friday.

 

Please help!!

[mowbli]

After reading the thread below by surfaceagentx20 I'm thinking it may actually be better to ignore the SD as it wasn't served on my wife anyway (it was given to me). I doubt that the process server (if he even was one) would swear an affidavit that he gave it to my wife.... Any thoughts?

 

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

 

Thanks

[unclebulgaria67]

Doing nothing, I would suggest is not a good idea. It might be an idea to speak to the clerk of court, to see if it would be worth just asking for set aside purely on the basis that the SD was incorrectly served.

 

If this is done and accepted by the court, then Lowell would have to start again and then you would have to go through the proper process, making the arguments in the various posts above.

 

If your wife does nothing, then the court could just accept the SD and then Lowell could file for bankrupcy.

[mowbli]

My understanding is that the court won't progress with a petition unless they are satisfied that the SD has been served correclty. As the onus is on Lowell to prove that it was served correctly, the only way they could do that would be to file an affidavit that stated it was given to me instead or they would have to submit a fals affidavit stating that it was handed to my wife.

 

If Lowells then file a petition for bancrupcy, surely my wife would recieve notification of this at which point we could state that no SD has been received by my wife...

 

Is there a time limit that Lowells have to file for bancrupcy once the SD has been served and the 21 days has passed?

 

Mowbli

[42man]

You are correct, but a judge may reasonably assume that as you are the husband then service would have been effected...when I said dissmissal, I meant dismiss it in your favour, if you have applied to set it aside it would be highly unlikely that he would dismmiss it in favour of the claimant without it going to court...

[42man]

Just adding this

 

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

[mowbli]

You are correct, but a judge may reasonably assume that as you are the husband then service would have been effected...when I said dissmissal, I meant dismiss it in your favour, if you have applied to set it aside it would be highly unlikely that he would dismmiss it in favour of the claimant without it going to court...

 

Thansk 42man - I'm not sure what you mean above? I can't see where to have referred to dismissal in your previous posts.

[mowbli]

Does anyone know what happens if you ignore the SD and then Lowells file for bankrupcy? I presume that at that point, we would receive notification with the opportunity to defend on the basis that the SD wasn't served on my wife (it was served on me and I was asked to pass it to my wife)

 

Thanks

[mandyjayne]

You're better off getting this Set aside at the first hurdle, rather than having a more complicated fight on your hands at a later stage.

 

Lowells will not put up much of a fight, they never provide any backup to the SD, ie agreements, DNs, etc.

 

They are renound for not turning up at the court hearing, so that in its self will grant your set aside!

 

Do not ignore it just get rid of it...IMO

 

MJ

[mowbli]

Thanks MJ, do you think part of the set aside reasoning should include the incorrect serving of the SD or just stick to what I put above?

 

Do you think I could defend it purely on the basis that I don't recognise who SAV credit are? They are shown as the original creditor on the SD but it was actually HFC (HSBC I think) until SAV purchased the Marbles card from them in 2007... I would have thought that HFC would need to be shown as the original creditor and therefore quite valid that we don't recognise who SAV creidt are and as they have provided no documentation to back up the SD, we have nothing to defend...