old EGG CCJ/CO sold to 1st credit, still paying - Now Going for SD **WON**

[hopey7]

Sorry SD is Statutory Demand for Bankruptcy.

[pabrmu]

Sorry mate, cant help you with this, but I'm sure someone will be along soon for you.

[hopey7]

pabrmu thanks for that.

I have already noticed some inaccuracies in their witness statement. I will do exactly the same and take it to court on friday.

[postggj]

can you post up your affi-davit

[42man]

You say they have a charging order....are you making payments towards the original county court judgment ?

 

And in their bundle is there an affadavit showing how the statutory demand was served on you ?

 

40.29 Minimum debt

To present a winding-up petition on the basis of a written demand, there must be a debt of more than the statutory minimum, which is currently £750 [note 5].

In order to start bankruptcy proceedings the debt must exceed the bankruptcy level of £750 and the debtor appear unable to pay his/her debts [note 6].For the purposes of section 267(2)© a person appears unable to pay a debt or debts if a statutory demand is not complied with during a period of 3 weeks from the date of service, or, in the case of a judgment debt, execution or other process issued in respect of it is returned unsatisfied in whole or in part. The role of the statutory demand is to give rise to a presumption of inability to pay a debt.

A number of creditors for smaller amounts can aggregate their claims to reach this minimum [note 7].

 

 

40.30 Disputed debts

In order that a petition be presented it is essential that there is a debt and that there is no bona fide dispute concerning the debt. The court will not make a winding-up or bankruptcy order on the basis of a claim which is genuinely disputed [note 8]. If the claim has already proceeded to judgment, there can usually be no dispute that the debt is owing, although there might still be scope for the debtor to cross-claim . The court can go behind the judgment [note 9] although it is very rare for this to happen and will usually only occur in the case of a default judgment.

[hopey7]

You say they have a charging order....are you making payments towards the original county court judgment ?

 

Yes I am making monthly payments. The amount is what I offered them out of court. There was no formal acceptance of the offer but they cash my cheque every month.

[42man]

They are presenting this on the presumption that you cannot afford to pay the debt. So my earlier question as to whether you are paying towards this at the moment is relevant. There are 2 ways that you can possibly fight against this the first is to prove to the judge that you can afford this, but what you will need to show is full financial breakdown proving that you can afford it. If you are making regular payments then I would say that this is undue pressure on their part and uneccessary (and you MUST report them to the OFT too).

 

The other way is to get the original CCJ set aside.

 

However you need to look at the process very carefully and certainly if there are as you say some inaccuracies then DO highlight these, don't forget also to submit your costs to the court so they are in the folder at least 24 hours before the hearing.

[hopey7]

And in their bundle is there an affadavit showing how the statutory demand was served on you ?

 

Yes there is

[42man]

Excellent Hopey, in which case you have kept the payment schedules (they may say that they never agreed anything outside the court room so be wary of that), take along bank statements to prove that you have made the payments every month....this would seem to be undue pressure on their part especially so as they have security and you have kept your part of the deal both you and them made outside the courtroom. The judge will not be happy with them, you have kept to your side of the bargain, this is undue pressure from them and if you need to refer to CPUTR08 and the OFT's guidelines on debt collection then do.....

 

In which case you question as to why you are actually there wasting yours, theirs and the judges time, when an agreement was made outside the court room... they have security, you are making the payments regualrly, this is a waste of the courts time and you wish to claim your costs....!!

 

Looking at your old posts, I presume this is an old 'Egg' account ? is there any PPI to reclaim back ? as you know if there is any evidence of missold PPI then the whole agreement could be brought into question !! although you would have to go back and fight the original CCJ for this.....

[DonkeyB]

42man, as this is our old friends, do you think a few calls to the elusive contact on the SD might help? If he’s not available, and the OP can prove it, it adds weight to the set-aside. Also, if hopey gets through, he or she can simply state that they intend to have the SD set aside. Worth a try? I believe continued non-availabilty of the named contact is grounds for set aside.

[hopey7]

 

Here's my affi-davit

[42man]

Donkey it is something I have mentioned previously but it really depends on how serious a judge considers it to be. In this case it may not be quite so relevant as there is already a judgment to be considered, it might be worth trying.... - Try calling the person named on the demand, and if you can't get put through then it could possibly be considered an abuse of process - A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986

Is this Judge and Priestly or Moorhead James ? If it is one of these 2 then it is likely you will get through though.

 

Too small to read Hopey !! you might have to use photobucket or another free photo service

[hopey7]

Looking at your old posts, I presume this is an old 'Egg' account ? is there any PPI to reclaim back ? as you know if there is any evidence of missold PPI then the whole agreement could be brought into question !! although you would have to go back and fight the original CCJ for this.....

 

42man you are right. This is an old Egg account. I strongly believe there is PPI misselling on the account but didn't manage to find out how to deal with that while the SD is hanging over me.

[42man]

What a pity you couldn't have defended this at CCJ stage. It certainly isn't relevant now at this coming hearing as judgment has come and gone, but if you were to say to the judge that you are considering setting the original CCJ aside due to PPI misselling on the part of Egg, then that MAY give the judge a more warm and fuzzy feeling towards you, although he may ask why it wasn't challenged at the CCJ stage, then you would say that you weren't aware of it at that time !! - just do a search on Google, I think Egg were fined a huge amount for missold PPI !!

 

A full SAR to Egg too (unless you have already done this)

[hopey7]

Too small to read Hopey !! you might have to use photobucket or another free photo service

 

Here it is on photobucket. Hope it's clearer

http://i1143.photobucket.com/albums/n639/hopey7/sd-ws.jpg

Edited October 6, 2010 by hopey7
error

[hopey7]

....... but if you were to say to the judge that you are considering setting the original CCJ aside due to PPI misselling on the part of Egg, then that MAY give the judge a more warm and fuzzy feeling towards you, although he may ask why it wasn't challenged at the CCJ stage, then you would say that you weren't aware of it at that time !!

 

That's a good idea. Does it matter that I have unsuccessfully tried to set aside the original CCJ?

[42man]

Affadavit looks fine....i'd suggest that this is a vexatious and agressive action on their part especially so bearing in mind the facts (you are making regular payments which were agreed outside the courtroom) and that the original debt has missold PPI on it....I think they know this too and this may be why they are trying to steamroller you....be firm Hopey !!!

 

Did you attempt to set it aside due to missold PPI ? if not then you are now more aware of your rights.....

 

42man said:

Did you attempt to set it aside due to missold PPI ? if not then you are now more aware of your rights.....

 

No it wasn't. I challenged it due to an abuse of process which the judge pointed out at the hearing of the final charging order.

So I have a second chance now.

[42man]

It would depend on what grounds you tried to fight the CCJ of course.

So am I correct in saying that you had a CCJ for this, (did you fight it at this stage)

Then you had a charging order hearing ? (did you fight this too)

And am I right in presuming you have already had an ADDITIONAL stat demand previously or is this the first ?

 

So you agreed to a charging order ? despite the abuse of process ?

[hopey7]

42man said:

So you agreed to a charging order ? despite the abuse of process ?

 

The abuse of process was actually in obtaining the initial judgement. The judge gave a clear hint that I could challenge the initial judgement. But when I did it was unsuccessful.

 

42man said:

It would depend on what grounds you tried to fight the CCJ of course.

So am I correct in saying that you had a CCJ for this, (did you fight it at this stage)

Then you had a charging order hearing ? (did you fight this too)

And am I right in presuming you have already had an ADDITIONAL stat demand previously or is this the first ?

 

This is the first stat demand.

 

I didn't know better. I would have been more successful in fighting the CCJ if I know what I know now from this site.

I didn't fight the CCJ initially. But I did fight the charging order and lost. Then tried to set-aside the CCJ but lost.

[42man]

OK well if the PPI wasn't mentioned at the time then you could possibly go back and get the CCJ set aside on that factor - did you see this ? - http://www.dailymail.co.uk/news/article-1217173/Judge-quashes-womans-8-000-credit-card-debt-landmark-ruling-mis-selling-payment-protection-insurance.html Any ideas how much the PPI was worth ? if it was a substantial sum + 8% interest would it take the value of the debt below the £750 threshold for bankruptcy ? (possibly not)

 

May I ask on what grounds you challenged the original CCJ / Charging order ?

[hopey7]

......Any ideas how much the PPI was worth ? if it was a substantial sum + 8% interest would it take the value of the debt below the £750 threshold for bankruptcy ? (possibly not)

 

Not sure how much the PPI is worth but it wouldn't bring the debt below £750.

[hopey7]

Update on my set aside hearing...........I WON - Yes!!!

 

I have to thank you all for your support and encouragement when I felt really scared.

Thank you pabrmu for your input. I did what you said in your post. Thank you postggj for your input. And not forgetting 42man, what a MAN. Thanks all. I will post full details later today.

 

I need to sort out a burst radiator issue that flooded my house last night while I was trying to finish my preparation for court this morning. I thought the incident was a bad omen to prevent me from being fully prepared for court today. But after temporarily halting the leak and cleaning the mess, I was tired and fell asleep, only to wake up at 5am to make sure I was as ready as I intended.

 

By the way, Donating all my cost to CAG, the least I can do.

Edited October 11, 2010 by hopey7
typo

[DonkeyB]

Well done! Now fix that leak...

[pabrmu]

Great news,hopey.

Well done.It inspires us all.

Cant wait to read about it.

[hopey7]

Here's the details of my victorious day in court yesterday.

Sorry I couldn't post earlier as I hoped.

Had a plumbing emergency.

 

I received the scary bundle from the solicitor for 1st credit on the 6th Oct.

I immediately came here to seek help.

 

I was looking forward to the hearing until this letter arrived.

My nerves were calmed by the responses I received.

 

Having collected my thoughts, I read through their witness statement.

I noticed some inaccuracies and misrepresentation of facts.

I was able to rebut 50% - 60% of their statements.

My confidence grew as I went on.

 

The main reason for the set aside was that the creditor holds security, by way of a charging order, which is of a greater value than the debt.

 

I provided an estimated valuation of my property which showed that the equity was much greater than the debt.

They claimed that I did not provide any evidence in my witness statement to support my valuation.

 

They produced a figure which they claimed is the value of the equity in my property.

This figure is lower than the debt, but I couldn’t work out how they arrived at the figure.

In a nutshell, this was where their case fell apart.

 

When I arrived at the court, the solicitor for 1st credit came to me to apologise about some figures that were wrong and asked if I could correct them in my copy of their witness statement. But before we could do any amendments, our case was called.

 

We went in, sat in front of the judge and the solicitor immediately handed his amendments to the judge.

When the judge finished reading through he immediately went for the bullseye.

 

Defendant says he owes X.

Defendant says you hold security.

Defendant says equity is Y.

And Y is greater than X by up to 2:1.

 

Your witness statement is very comprehensive but you have failed to challenge the basic reason why the defendant is seeking to set aside the statutory demand.

 

For about 10 minutes the solicitor sifted through his notes and throwing up figures to the judge, none of which was making any sense or answering the question.

 

At one point the judge pointed out to him that he (the solicitor) has given him (the judge) 4 different figures as the outstanding debt.

He seemed very ill-briefed and/or unprepared.

 

The solicitor now decides to bring into account a figure of £650.

This was the cost awarded against me after my failed attempt to set aside the initial CCJ.

 

He tells the judge that I have not paid this cost.

I went to court armed with my cheque book should this cost issue come into play.

But to my amazement, the judge said that the £650 figure is below the £750 threshold for a bankruptcy petition.

Also that even if it wasn’t, because they hold security, that any costs that arise from the case should automatically be added to the debt and the charging order.

 

At this point the judge demanded a final figure from the solicitor including this £650.

He spent about 30 seconds trying to work out this basic sum.

From the expression on the judge’s face, I could tell how fed up he was.

 

After the solicitor produced the final figure, the judge demanded a simple Yes/No answer to a few questions.

At the end of which he decided to set aside the SD on the basis that the security they hold by way of the charging order was greater in value than the debt.

 

So after all the hard work I put into my defence, I did not have the opportunity to utter a single word of defence in court.

But it was not a waste because knowing that I was fully prepared gave me the confidence to be there in the first place.

 

The only statement I made in court was when the judge asked me about my cost.

I asked for 2 days’ loss of earnings for the time spent researching and preparing my defence and attending court.

 

Their solicitor challenged the 2 days, but willing to accept 1 day’s loss of earnings as reasonable.

That was the only victory he had in court.

I had the victory that mattered.

 

By the way, my radiator is being worked on as I write.

Thanks for all your help.

I hope others are inspired by this victory.