largo law bankruptcy petition statue barred WON

buffyoo7 · June 23, 2010

lady from direct line as phoned they have found me and my debt was sold to aic on 14 /12 2005 asked how much debt was sold for but she did not have that information also asked for a copy of notice of assignment but she did not have that i all might come back with the s a r but dont think i will have it in time for court should i phone aic and ask them for a copy x

42man · June 23, 2010

This will be part of your defence the non production of a valid notice of assignment...AIC are unlikely to be able to provide this...I would ring the solicitors and state that you will be setting aside the demand which you have requested from the court as well as the petition. For a number of reasons...bear in mind that the petition should contain the name of a person that you should be able to speak to....note down the dates and time you call the solicitors (bear in mind the signature on the petition is illegible and i'd be interested to see if the name on the demand is also illegible).....if you can't get through to talk to somebody then this could be an abuse of the process....

buffyoo7 · June 23, 2010

man who is dealing with it at largo was not working this afternoon will phone in the morning x

buffyoo7 · June 24, 2010

hi

post just been nothing from court gonna go down there now and pick papers up last day to get defence in is on monday so starting to panick abit now will post papers on here as soon as get back

thanks buffy

buffyoo7 · June 24, 2010

got papers from court will put them on here in a bit but i can see loads of things on stat demand that are not correct and on the petition too

1.it says this demand is served on you by the creditor direct line but direct line know nothing about this

2. once again the have put aic address for direct line

3.it says the account was assigned to fairmile partnership under a free flow agreement (does anyone know what a free flow agreement is )

4. who are fairmail where do they come into it and why aci address

5. there is no address or phone number on anything for fairmail

thanks buffy x

DonkeyB · June 24, 2010

Fairmile is almost certainly part of CarVal investments.

42man · June 24, 2010

Excellent, no affadavit, statute barred debt....creditors name is completely different on the BP to the stat demand...I can only dream of Christmas and stuffed turkey with added costs....

42man · June 24, 2010

Just adding some useful links...

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162489-statutory-demand-stature-barred-2.html#post1749288

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

Witness statement

Statement: Defendant

Party:

Statement:

Exhibits:

Date:

APPLICATION TO SET ASIDE THE STATUTORY DEMAND

OF MR (name)

_________________________________________________________

statement of MRS (name)

_________________________________________________________

I, Mr (name) of ………(address)……………………………… will say as follows:-

I confirm to the best of my knowledge and memory that I not been issued with any demand of any while I have been living at this address. The first time I became aware of this petition was. (date)

I believe that the facts stated in this witness statement are true.

SIGNED ………………………………………..

MRS (name)

Dated ………………………………………..

buffyoo7 · June 24, 2010

thank you 42man printing it off now buffy x

42man · June 24, 2010

Affadavit...

The defendant totally disputes the alleged debt.

The alleged debt is clearly barred by Statute under S5 of The Limitation Act 1980

The claimant has not provided any details of any insurance products that were added potentially in error/possible fraud which would potentially bring any agreement under question.

The defendant had up until (date you saw petition) never seen any kind of demand or petition.

As of (the date you got ALL the court files - today ?) There was no affidavit present in the court files.

Rule 6.3 Requirements as to service

(2) The creditor is, by virtue of the Rules, under an obligation to do all that is reasonable for the purpose of bringing the statutory demand to the debtor's attention and, if practicable in the particular circumstances, to cause personal service of the demand to be effected.

The witness statement clearly shows that no personal service has been attempted and that the demand was simply ‘posted’. It is also noted that there has been no provision for any kind of substituted service.

I have never ever seen a statutory demand for this claim and would state that there are sufficient doubts that the process has not been carried out to the law, neither have I had anything 'served' upon me.

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

Rule 6.11.Proof of service of statutory demand

(1) Where under section 268 the petition must have been preceded by a statutory demand, there must be filed in court, with the petition, an affidavit or affidavits proving service of the demand.

(2) Every affidavit must have exhibited to it a copy of the demand as served.

(3) Subject to the next paragraph, if the demand has been served personally on the debtor, the affidavit must be made by the person who effected that service.

(4) If service of the demand (however effected) has been acknowledged in writing either by the debtor himself, or by some person stating himself in the acknowledgement to be authorised to accept service on the debtor's behalf, the affidavit must be made either by the creditor or by a person acting on his behalf, and the acknowledgement of service must be exhibited to the affidavit.

(5) If neither paragraph (3) nor paragraph (4) applies, the affidavit or affidavits must be made by a person or persons having direct personal knowledge of the means adopted for serving the statutory demand, and must

(a) give particulars of the steps which have been taken with a view to serving the demand personally, and

(b) state the means whereby (those steps having been ineffective) it was sought to bring the demand to the debtor's attention, and

(6) The steps of which particulars are given for the purposes of paragraph (5)(a) must be such as would have sufficed to justify an order for substituted service of a petition.

(7) If the affidavit specifies a date for the purposes of compliance with paragraph (5)©, then unless the court otherwise orders, that date is deemed for the purposes of the Rules to have been the date on which the statutory demand was served on the debtor.

(8) Where the creditor has taken advantage of Rule 6.3(3) (newspaper advertisement), the affidavit must be made either by the creditor himself or by a person having direct personal knowledge of the circumstances; and there must be specified in the affidavit

(a) the means of the creditor's knowledge or (as the case may be) belief required for the purposes of that Rule, and

(b) the date or dates on which, and the newspaper in which, the statutory demand was advertised under that Rule;

and there shall be exhibited to the affidavit a copy of any advertisement of the statutory demand.

(9) The court may decline to file the petition if not satisfied that the creditor has discharged the obligation imposed on him by Rule 6.3(2)

Thus a creditor wishing to proceed with a petition based upon a SD served in the ordinary course of post, will, without the debtor's written acknowledgement of its receipt, be incapable of satisfying the requirements of proof demanded by IR 6.11. By IR 6.11(9), the petition runs a serious risk of rejection at the filing stage.

In order to illustrate the extent of the obligation imposed, in Regional Collection Services Ltd v Heald [2000] BPIR 661 it was held that a creditor had not done all that was reasonable within IR 6.3(2)

THE IMPORTANCE OF THE CONSUMER CREDIT AGREEMENT

I refer to:

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 First Credit Ltd. via guaranteed delivery on the (insert the date on the recorded delivery slip here Tom) (see attached document 1) – you need to copy the letter and the recorded delivery slip (take 2 copies one for the court and one for the opposing solicitor ) – to date they have not sent any copies of any Original Executed Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

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 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

The alleged creditor has sent what they claim is a copy of “Original Credit Agreement”

This statement is untrue as the documents that have been sent are blank agreements, unexecuted and unsigned and are not pertaining to any agreement pre year 2000.

Note term 11.2 which quotes “Financial Services (Distance Marketing) Regulations 2004”

THE IMPORTANCE OF 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)

It is noted that the signature page does not contain the prescribed terms.

I refer to:

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 signed 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.

In Wilson and another v Hurstanger Ltd (2007) it was stated “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 … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(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.

You will not doubt be also aware of the cases of London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, McGinn and Grange Wood securities [2002] EWCA Civ 522, Wilson v Robertson’s (London) Ltd [2005] EWHC 1425 (Ch), these cases support the view that without a copy of the credit agreement containing the prescribed terms per schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 (SI1983 / 1553) bearing the signature of the debtor per S 61 Consumer Credit Act 1974 the agreement is rendered unenforceable even by a court

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 petition.

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

EXCESSIVE CHARGES

1 - The Claimant’s charges which may have been applied to the account are unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, it is likely that the alleged claimant/ or original creditor has charged an amount that is not proportionate to the amount of any payment not made.

2 - Further, or in the alternative, the claimant’s or the original claimants charges are a disproportionate penalty and therefore unlawful and irrecoverable at common law. (Dunlop Pneumatic v New Garage [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963)

.

THE PERFECTION OF THE ASSIGNMENT

1 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

2 Since the claimant should have a sent a notice of assignment it is assumed that this was done via the postal service.

The requirements for service via the post are

Law Of Property Act (1925) s196

.

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.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent

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).

42man · June 24, 2010