Capquest sending Statutory Demand..help please -**SD set aside**

[jellybabe]

I have started the form 6.5 but i am stuck.

I know you would like people to do it themselfs, which i can understand, as this is the best way to learn and understand what you are trying to argue.

But please, i beg you, i need some help with my Affidavit.

This is what i've got so far:

 

"believe that the Statutory Demand does not comply with the rules of insolvency in that the defendant has been unable to contact the person named on the demand for the alleged creditor, a Mr Barry Davies.

The defendant tried to contact a Mr Barry Davies on no less than 8 occasion, over a period of 4 days, this in contravention of rule 6.2 of the insolvency rules.

the defendant disputes the alleged Debt due to the alleged Debt being made up of unlawful Charges that the defendant is in the process of claiming back and for that reason the defendant requires this to be set aside as the amount owed is not a true reflection of the Debt."

Don't know what else to put in, since my agreement (posted above) looks Ok to people.

Should Capquest have posted anything else with the Demand?

Should they have sent me a copy of the alleged agreement,statement of account,default notice and termination notice, and so on??

I haven't received anything else in the envelope apart from the covering letter and the Demand.

I have CCA'd and SAR'd Capquest a few days ago.....will i have to put in the form that i'm still waiting for a reply on those?

Or will i have to wait with bringing those forms to Court until i received them, obviously as long as it is still within my 18 days?

I'm ever more worried now, as i can't handle all this....on top of that, i'm worried that i will be away from the 9th until the 16th August. What am i gonna do about that?

Please please help with your great advise and am really sorry for the lenghty post

[citizenB]

I will just have a look round to see if there are any similar situations for you.

[citizenB]

A few links for you to read that will help you complete the forms.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/261023-stat-demand-served-lowell.html

 

 

Read from post number 41 in the following link. A statutory demand was issued against the person below and there will be information to help you.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188908-mbna-now-experto-credite-5.html#post2832026

 

 

Some information that will help you complete the forms and some links to look at.

 

have a read of the following off the insolvency site.

 

Legal Issues Explained - Statutory Demand

 

What is a statutory Demand?

 

A Statutory Demand is the first step to bankruptcy against an individual and this is prepared and served without any court involvement. A statutory demand can be served as soon as the debt is due and a judgment is not necessary. If the debtor disputes the claim, he or she can apply for the statutory demand to be set aside. The bankruptcy court will halt the bankruptcy if there is any dispute about the sum outstanding. It can be relatively easy for a debtor to have a statutory demand set aside and the process can result in an order for costs being made against the creditor.

Please note that a statutory demand in 90% of instances is 'bluffing technique' used to scare a person into paying up. If a bankruptcy petition does not follow then this will become apparent.

 

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Why are Statutory Demands to powerful?

 

• The Statutory Demands procedure is simple to implement.
  
• To issue a statutory demand all you need to do is complete a form.
  
• You can send a statutory demand by recorded post, without the need of personal delivery.
  
• You do not need a solicitor to issue a statutory demand.
  
• You do not need to pay expensive court filing fees issue a statutory demand.
  
• People assume that a solicitor has been utilised so get scared and pay immediately.
  

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What is the point of a statutory demand?

 

 

 

 

 

A statutory demands is supposed to make sure the person in debt pay the amount owing this is either carried out by paying in full or:-

1. It is a way to get the debtor to offer his or her property as security or;
   
2. It is a way to get the debtor pay up in another agreed way. Such as instalments.
   

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When is a statutory Demand a threat?

 

• A statutory demand is something to worry about if your debts are over, say, £1000.
  
• A statutory demand is a threat if the person after the debt is wealthy enough to carry out the bankruptcy threat the whole way.
  
• A statutory demand is a cause for concern if the person after the debt is bitter and angry enough to actually make you bankrupt.
  
• If you are a home owner or actually have assets you are at risk of losing if you go bankrupt then a statutory demand is a threat.
  
• The person you owe the money to knows you are a home owner or have assets therefore is willing to spend money making you bankrupt.
  
• If your reputation is at risk by the public finding out about the statutory demand process being started against you.
  

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How to reduce the risk of bankruptcy following a statutory demand.

 

• To avoid bankruptcy reduce the debt to less than £750.
  
• Offer to pay the debt by instalments.
  
• Make a reasonable offer to settle the debt.
  
• Apply to have the statutory demand set aside
  

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The procedure to get a statutory demand set aside.

 

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.

One method of avoiding bankruptcy is to get the statutory demand set aside.

 

 

 

 

To successfully get a statutory demand set aside one or more of the following must be satisfied:-

• The amount stated on the statutory demand is disputed.
  
• The person issuing the statutory demand also owes money. This is called a counterclaim.
  
• The person issuing the statutory demand is holding security that equals or exceeds the amount owing.
  
• The demand was issued in error.
  
• The amount owing is less than £750
  
• Execution has been stayed on a judgement debt.
  
• The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.
  
• The creditor failed to comply with the rules and prejudiced the debtor in the process.
  

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What are the time limits to get a statutory demand set aside?

 

An application to set aside must be made with 18 days of the statutory demand being served.

 

What forms must be used to get a statutory demand set aside?

 

Forms 6.4 (application) and 6.5 (affidavit) must be completed and taken to the court.

 

Can the court dismiss an application to set a statutory demand set aside?

 

Yes, if application if there are no reasonable ground to do so.

 

What forms are typically used in the statutory demand process?

 

1. Form no: 4.1
   Statutory Demand under section 123(1)(a) or 222(1)(a) of the Insolvency Act 1986
   Download Form 4.1.pdf*
   
2. Form no: 6.1
   Statutory Demand under section 268(1)(a) of the Insolvency Act 1986. Debt for Liquidated Sum Payable Immediately
   Download Form 6.1.pdf*
   
3. Form no: 6.2
   Statutory Demand under section 268(1)(a) of the Insolvency Act 1986. Debt for Liquidated Sum Payable Immediately Following a Judgment or Order of the Court
   Download Form 6.2.pdf
   

As you have said there is so much wrong including rafts of fees and charges if its MBN@, it would be easy to get it set aside.

 

How was it delivered? Recorded or personal.

 

Remember these things come from anyone not courts. And guess what they are free. So why not take you to court get costs?. Because they know they will lose, a threatogram 100% Ron

 

 

 

another SD link from the forums

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/265319-capquest-stautory-demand.html

 

 

If you are still struggling.. come back and ask for further help.

[citizenB]

Another useful SD forum link, the Stat Demand was set aside because the other side didnt even bother turning up !!

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/188908-mbna-now-experto-credite.html

 

Absolutely guaranteed to p*ss off the DJ

 

Oops, I had already linked you to this one in the previous post:rolleyes:

Edited July 29, 2010 by citizenB

[jellybabe]

Thank soooo much, will read through them right now

[jellybabe]

ok then,

i have took the Affidavit from 42man's post #63 as a basis for me.

 

Do i have to delete everything out of it that relates to a CCA? Or should Capquest still have sent me CCA, Default Notices and so on?

 

All i've got is the above CCA from Shop Direct, and an assignment letter from Shop Direct, and also a letter from Capquest that this account has now been sold to them. And these were sent to me seperatly throughout the Year.....NOT attached to the Demand.

 

I really need to know if i have to take all the CCA bits out and mention that the Demand was send to me by standard post, with no CCA, Default Notice, and so on attached. As i start to get the understanding that they should have attached all those to the Demand?

 

They have bought it so they need to proof that they have all the neccessary documents to support their claim?

 

Am i right?

 

And then i will have to put in that the account contains Penalty Charges, and therefore the amount owed is wrong on the Demand aswell?

 

But surely i can't argue both, can i? Either i contest due to the CCA or due to the Charges and the amount owed?

 

Ooooohhhhh, i'm starting to confuse myself even more now.

 

I think i do know in my head what i want to say, but i just can't word it out.

[jellybabe]

Could anyone please advise on my questions in post #106? Thanks

 

Also....i have today received 2 letters of Capquest.

1 to let me know that the account is on hold for 28 days while they investigate and get the information.

and the 2nd to let me know that they are currently collecting all the neccessary documentations i asked for.

Those are in reply to my CCA and SAR requests. Not sure though which one is for which, but that shouldn't matter really, as they both got delivered on the same day.

 

I suppose i should still try and get my set aside sorted, as i don't trust them one bit.

 

Will still need help with the wordings though please if anyone may be so kind.I only have until the 8th, which is a sunday, so really Fri at the latest.

And also, i am away from the 9th until the 16th, would that be a problem. No one managed to answer this question for me yet.

I am a bit worried about missing the letter from court and not being here to attend Court in time.

 

Thanks ever so much,

jellybabe x

Edited July 30, 2010 by jellybabe
adding bits...and spelling :(

[citizenB]

You MUST get this set aside in on time.

 

Your affidavit should be personal to you. Where you are using another affidavit as a template.. anything that doesnt apply to you should be removed.

 

Does that make sense ?

[citizenB]

When you file your affidavit at court then you should tell the court clerk if you think there will be a problem with dates for court hearings.

[citizenB]

In reply to another question you asked.

 

Yes.. they have issued a claim and therefore are required to support that claim with documents.

 

If you pop up a draft then we can have a look at it for you.

[jellybabe]

Thanks citizenB,

 

i probably sound really stupid to you with all my questions, but the whole thing is so confusing to me.

 

Ok then,

Shop direct have supplied me with the above posted CCA......Capquest have not.

So i suppose, to be on the safe side...i have to take that bit out my Affidavit and concentrate on....

 

1. Capquest have not attached any documents on the Statutory Demand to support their claim. Meaning, all i received was the SD, a covering letter and nothing else. If i understand right, i should have been supplied with a Default Notice, Account Termination Notice,Notice of assignment, Statement of Account, a CCA plus Terms&Conditions from time of opening the account and also the current ones?

 

2. the account is also in Dispute due to the amount owing, as there are Penalty Charges involved, which i started reclaiming in 2008...but haven't filed at court yet due to various reasons.

 

This should build my Affidavit?

 

Please let me know if i'm wrong with anything...i will try to draft something up later on.

 

Thanks

[jellybabe]

I'm slowly getting there i think, this is what i've got......please rip it apart if you need and advise what i need to change.

 

I believe that the Statutory Demand does not comply with the rules of insolvency in that the defendant has been unable to contact the person named on the demand for the alleged creditor, a Mr Barry Davies.

 

The Defendant tried to contact a Mr Barry Davies ,on the telephone number stated on the Statutory Demand, on no less than 8 occasions, over a period of 4 days, this is in contravention of rule 6.2 of the insolvency rules.

 

The alleged creditor has failed to serve with the Statutory Demand; a copy of the alleged agreement, statement of account, default notice and termination notice for this alleged account.

 

 

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 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.

 

Assignment Notice

 

The alleged creditor has failed to serve a notice of assignment in accordance with the Law of Property act 1925 to confirm that the creditor has the lawful right to issue this demand.

 

The alleged creditor has failed to confirm if this Notice of Assignment was absolute equitable.

　

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 ineffectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169.

 

COSTS

　

The Defendant requests an application for costs,I draw the Courts attention to a Mr Justice Warren and Hammonds (a firm) v Profit USA Ltd 2007 EWHC 1998.

 

He confirmed So far as disputed debts are concerned that the insolvency service should not be used as a method for debt collection where a bona-fide and substantial dispute as to the debt is in place, save in exceptional cases, the Court shall dismiss a petition and award costs against the Petitioner.

 

Edited August 1, 2010 by citizenB

[jellybabe]

i tried to search on here and also googled it, to no avail....could someone please tell me how much i will have to pay at the Court to swear my Affidavit?

[shedder101]

nothing its free

 

just remember to take three copies of everything

[jellybabe]

Hi shedder101,

Thanks for your reply.

That is great news, as i was getting worried already on where to get the money from.

 

If anyone could please advise on my affidavit above....not sure if i mentioned everything i need to and also if it looks ok enough to take it to court yet. I will try and get down to my local court on Monday, am glad once this is over.

 

thanks all and have a nice weekend,

 

jellybabe x

[shedder101]

hi jellybabe

 

the forms 6.5 6.4 are your affidavit so you take 3 copies of them to the court

and ask to swear an affidavit.

 

you have to hold a bible and speak the words on the card all painless

 

as for its contents its best to ask one of the others as I did

[jellybabe]

Thanks, i will.

x

[citizenB]

Jellybaby, save keep bringing your draft affidavit down, I have made some minor amendments (in blue) in the original post above.

 

They are only nitpicking amendments.. spelling - upper case, where you have used lower case .

 

When printing it off of course, you will need to make sure all the blue additions are coloured black

[jellybabe]

Hi citizenB,

 

thank you soooo much...you are a STAR! x

 

Is this ready to go like that then? I will print 3 copies of it all (do i need to make copies of the Demand aswell, or just take the original down with me?), and then i will take it down to Court tomorrow morning.

 

Fingers cross that it will be all ok for me in the end. Hoping the Judge will be on my side.

 

thanks so much again for helping me out.Took me a while to get there.

Edited August 1, 2010 by jellybabe
spelling...once again

[citizenB]

I would suggest you take copies of everything..

 

Hopefully others will pop in on you and confirm that everything is ok to go. I have flagged the affidavit for other site team to pop in and have a look as well.

[debt4get]

The statutory demand exhibited hereto and marked ‘A’ came into my hands.

2. That I xxxxxx do not admit the debt because

I believe that the statutory demand does not comply with the rules of insolvency in that the person named on the demand for the Creditor is unavailable for comment. The defendant on no less than eight occasions contacted the alleged creditor and requested to speak to a Mr Barry Davies, who is named on the statutory demand, the creditor on each occasion declined my request.

A statutory demand must show a named person or persons from the creditor or their solicitor, who must be contacted directly, this is rule 6.2 of the Insolvency Act 1986.

 

 

i would also remove the part 'likely to made up of penalty charges...to read 'is made up of penalty charges...

when you get to costs

 

 

 

I respectfully request that the court give consideration to awarding costs on the indemnity basis, or in the alternative, on the standard basis, as I believe in any case that they have to be proportionately and reasonably incurred and/or are a proportionate and reasonable amount. In support of this request I would like to refer the courts attention of the authority of the High Court Case HAMMONDS (A FIRM) V PRO FIT USA LTD (2007) EWC H 1998 (CH)

 

IN THIS CASE A MR JUSTICE WARREN Confirmed that it was unusual for an indemnity award to be made.

Before undertaking this myself I approached a solicitor to handle this. I was given an estimate of 3 to 6 hours at £190/hour to prepare the Application (£570-£1140) plus extra for attending the court.

 

Rate Claimed Litigant in Person rate of £9.25 / hour

30 hours = £277.50 plus

Time spent communicating with Respondent and swearing affidavit

 

2 hours = £ 18.50

 

Loss of x day’s wages for attending court on xxxxx = £xxx (delete if not used )

 

Travelling costs for journey to court on xxxxxxx xx miles x 2 = £xxxx(delete is not used)

Childcare costs = £xxx (delete if not used)

Total costs xxxxxx (11 + 12)

 

 

Travelling Costs HMRC Approved Mileage Rate of 40p / mile

Time spent identifying and understanding relevant legislation.

Time spent identifying and understanding relevant case law.

Time spent preparing affidavit and skeleton argument.

 

[jellybabe]

Thanks ever so much citizenB and debt4get...you are my heroes!

[jellybabe]

I have decided to wait until tomorrow before taking the papers to Court,just in case any of the Site Team have any more suggestions.

[jellybabe]

Just one quick question please.....

The costs as stated above, do i put them on the affidavit? Or is that what i have to send in to court later on?

 

Will get it all printed and take it to court in the morning.

 

Thanks all,

jellybabe

[debt4get]

yep they go on the papers you submit to the court..affadavit..