Lowell Portfolio and Bankruptcy Proceedings

[42man]

So are you saying they delivered older documents (such as the stat demand) to an old address ?

[42man]

45.118 Substituted service

If the court is satisfied by affidavit or other evidence on oath that prompt personal service is not possible, perhaps because the debtor is avoiding the proceedings, then on the application of the petitioner it may order substituted service in such terms as it thinks fit.

Notes: [r6.14(2)]

 

 

 

45.119 Steps which will justify anorder forsubstituted service

Practice Direction (Bankruptcy: Substituted Service) (18 December 1986, [1987] ALL ER 605) sets out the evidence which will suffice in most cases to justify an order for substituted service. The Practice Direction also applies to attempts to serve a statutory demand. This includes a personal call at all known business and residential addresses of the debtor; a letter to the debtor sent by first class post to all known addresses, giving 2 days notice of a further visit to serve the petition, and informing the debtor that failure to keep the appointment will result in an application for an order for substituted service; enquiries at the addresses to which the letter was sent to establish whether the debtor was in receipt of mail addressed to him there or whether they are forwarded to another address; and attempts to meet with the debtor through his solicitor (if represented).

 

45.120 Deemed service

Where an order for substituted service has been carried out, the petition is deemed served on the debtor. If that order is for service by first class post, the order will normally provide that service is deemed to be effected on the seventh day after posting.

Notes: [r6.14(3)]

 

 

 

45.121 Affidavit of service

The petitioning creditor must file an affidavit of service immediately after service of the petition.

The affidavit must have a sealed copy of the petition and, if applicable, a copy of the order for substituted service exhibited to it.

Notes: [r6.15]

[42man]

The service is crucial....and must be carried out by the book in line with the high court case here below....

 

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. 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

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.

[42man]

In line with what I have written above if there is no AFFADAVIT...then it is an abuse of the process !!

[Mr Worried]

Good stuff 42.

[alf2009]

Thank you. The original demand has a signed statement saying it was substituted service, and the actual document that lists the hearing date also has a statement from the solicitor saying he's been involved in the case. The time between the 2 documents is more than 4 months, May to November. The statutory demand is dated a day before the day it was supposedly hand delivered .the affedavit statement on the back is dated 2 days after the second 'appointment' was suggested. The solicitors statemnt is dated 3 weeks before the date it was received in court. There is a strange handwritten note at the bootom of the page saying there numerous prior petitions wiithin the last year. A reference to the number of letters I recieved perhaps from Red, Lowell, Hamptons etc?

[42man]

Sounds like there could be a potential abuse of process !!! bearing in mind the case law above with Boggis !! Also have you moved house ? (in between stat demand and BR petition)

[42man]

You say the 'affadavit statement' but it is actually an affadavit or just a statement ??

[42man]

45.114 Delays in presenting thepetition

Where the petition is based on a statutory demand which was served more than 4 months before the presentation of the petition, the affidavit verifying the petition must explain the delay.

 

If as says in line with the above, they have not added a witness statement or an affadavit as to why there is a delay it is an abuse of process which if it was me in your shoes, I would be defending this and submitting my costs too, providing you get a decent judge then I would expect this to be thrown out !!! You would be surprised how some solicitors try to cut corners or don't do things by the book....!!

Edited December 13, 2010 by 42man

[42man]

If the affadavit doesn't explain the delay then providing you have a favourable judge then it is game over for them.....

[alf2009]

Th Solicitors Statement is called a Statement of Truth, it refers to the Certificate Of Substituted Service which is called Exhibit A. It does not refer to any reason for delay. There is no Certificate of Service of the actual Court case notice in the file yet.

 

The case is for next Monday which is 4 working days now. What can I do best? I can't chance the house.

[42man]

If it was me in your shoes I would apply to oppose the BR !!

[alf2009]

Thanks agin. How do I apply? The form mentions a form 6.19 but has to be filed more than 7 days before the hearing date - now 6. What would the grounds be? A list of grounds? Do I need someone to help me compose it? I don't want to hope for the best here. Too much at stake and family in panic mode.

[42man]

You need to submit Form 6.19...along with an affadavit which will be along the same lines as the grounds stated in 6.19...if you have never seen a copy of the stat demand then a witness statement would be a good idea to submit....

 

List out your grounds for opposing for example such as

 

The petitioner has failed to submit reasons why the petition has been submitted late.

 

RE - Rule 45.114 Delays in presenting thepetition

Where the petition is based on a statutory demand which was served more than 4 months before the presentation of the petition, the affidavit verifying the petition must explain the delay.

 

The claimant has never received nor had sight of the statutroy demand (which you must put in a witness statement)

 

You should also list your other reasons for example.

 

Non compliance with a CCA request

Missold PPI

Statutory Barred debt...

 

(list your potential reasons)

[42man]

The affidavit or witness statement must also explain delay if more than four months have elapsed since service of the statutory demand (r 6.12(7)).

 

You must exhibit a copy of the petition (r 6.12(3)).

 

Finally, make sure you make the affidavit or witness statement on the day of presentation or shortly before presentation:

the court may refuse to accept it if it is stale.

 

Where a petition is presented on the basis of unsatisfied execution (s 268(1)(b)) the return must be filed with the petition and must be inspected by the court before the petition can be issued (Re a debtor (No 340 of 1992) ex parte the debtor v First National Commercial Bank plc [1996] 2 All ER 211).

[42man]

It is 5 working days Alf....the court should be ok for you to file 1 or 2 days maximum...if you file later or don't file and you go for an adjournment, then you may be liable for the costs !!! I think you need to get your finger out to be blunt...

[alf2009]

Thanks again. I did not make a CCA request. I assume 6 days to go instead of minimum 7 is OK and I attend on the day as well. I am worried / embarrassed that I did bin numerous letters and there was a change of address, though they must have known since the Land Registry wrote to me on their behalf, and there is in their documents a note that there is now a registered charge with the case number on my property, which I hope the mortgage company does not see.

 

Will there be questions on the day about why I didn't get in touch sooner, and suppose it all goes wrong . It was my credit card so eventually I would expect to pay something. Just not this way.

[42man]

In which case Alf....if it was me in your shoes then I would make an immediate CCA request, and a SAR request to the original creditor (bear in mind that you should dispute the agreement, default notice, termination notice, excessive charges, PPI possibly ? the perfection of the assignment.....the dispute is normally raised at Stat Demand stage, but if you never saw it then you would have to include a witness statement saying just that.....however with the fact that they have filed a petition late...I would be using that as one of the main points to throw out this petition....(in line with the Boggis statement)....

 

You need to do quite a bit of reading on these forums i'm afraid to say Alf !! and get busy with the opposition of the petition. Stick to the main points....why you are opposing the petition, and the potential abuse of process.....try and read and understand what is being said....

[42man]

You might find this thread useful - http://www.consumeractiongroup.co.uk/forum/showthread.php?154693-1st-credit-connaught-Bankruptcy-Petition-**-WON-**&highlight=affadavit

[42man]

As you moved 6 months ago it is important that you give evidence that you did indeed move residences.....that is the reason why you didn't see the stat demand ?? (am I correct ?)....if this isn't highlighted on their affadavit then delay or not they should have written it. It is sloppy of them.....and I would be concentrating on this abuse of process...!! is the alleged debt statute barred too ? Lowells seem to have been attempting to make people bankrupt recently on the back of statute barred debts which is appalling...

[babybear39]

Welcome to idiots inc. fan club

[nicklea]

This is something that I did for someone else as a defence to a county court claim. It may help you to put something together for yourself:-

 

5. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and Capital One, secondly that such an agreement complied with the requirements of Consumer Credit Act 1974 (“the Act”) and all consequential regulations made thereunder, both at the date of inception and at all times thereafter. Thirdly it must establish that Capital One complied with all of the provisions of the Act in that it must show that it served a proper default notice upon myself prior to terminating the agreement. Fourthly, it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925). Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

6. It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

 

 

 

Existence of a Written Agreement

 

 

7. It is accepted that I applied for a credit card with Capital One and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

8. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

9. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell[2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

9. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

 

Valid Default Notice

 

10. It is a condition that prior to the issue of Proceedings in respect of a Regulated agreement that certain steps must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

 

 

The Assignment of the Debt

 

12.It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful. It is not accepted that notice was given to myself of the assignment and the Claimant is put to strict proof that sufficient notice thereof was served upon myself before proceedings commenced. Without this proof the Claimant has no standing before the court.

 

13.The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

14. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. 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.

 

15.It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

16.For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

 

17.Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law to ensure that the Asignee can give good discharge (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

18.It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

Sums Claimed

 

19.It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

20.Further, it is denied that any alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurredand so are in breach of the common law and, in any event, unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999.

21.In case the Claimant should attempt to justify these charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did notstate or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

[alf2009]

Thank you all for the help. The linked thread includes valuable information. Its a good template to use as a defence. A lot of it matches.

 

I have read through the website and there's a lot to take in, I have to act tomorrow morning, my head is in a spin.

 

With what I picked up at court today, there seems to be no signed formal affidavit with the Statutory Notice, just the certificate of substituted service which is not signed, and a signed sheet saying exhibit A referred to in the certificate is the letter left, which ommited formal parts (the SN I expect).

 

The solicitors signed Certificate of Truth seems to be the affedavit as it also refers to exhibit A.

 

There is a separate sheet called Request to the Registrar for Leave to issue a Bankruptcy Petitionl Attention drawn to following points: Statutory Demand served by substituted service is this acceptabe?

 

Accept is initialed and dated.

 

At the bottom of the page theres a sentence stating "….we have not lodged the fee paying copy of the petition, also initialed. This seems to be the trigger to issue the BR. But the whole process is alien to me, I've never seen any of this to know whether it is correct or not.

 

I feel I should have some take a look tomorrow, but having no reguar solicitor, dont know how to quickly find one specialised, or an Insolvency Practitioner. if that would be more suitable.

 

One thing that I need to know about the procedure is if my defence is accepted, I am OK, if my defence is rejected, can I then just offer to pay in full (family would probably help if it was really BR) and avoid the BR and thats that or has it gone too far and BR is given and all is lost?

[42man]

Nicklea's input is excellent.....coupled with the abuse of process, no affadavit (backed up in your defence with the Boggis case !!) then I think you may (depending on the judge) have a good case....if for any reason at all it isn't going your way then kindly ask the judge for disclosure of ALL paperwork...agreement, notice of assignment, deed of assignment, default notice, notice of termination, statements for the duration of the account, proof that debt isn't barred by the statute of limitation act 1980 etc etc, You also need to look at if there was any PPI on it too..!!

[42man]

The defendant avers that the affadavit gives no explanation to why the petition has been filed out of time. I refer to

 

Insolvency Rules - 45.114 Delays in presenting the petition

Where the petition is based on a statutory demand which was served more than 4 months before the presentation of the petition, the affidavit verifying the petition must explain the delay.

 

The defendant states that there is no affadavit (Edit to suit here)

 

45.113 Presentation of the petition

When filing the petition, the petitioner must file the original and 2 copies, (one for service on the debtor, one to be exhibited to the affidavit of verification and an additional one, if appropriate, for the supervisor of any individual voluntary arrangement in force) and the original must be verified by an affidavit. The affidavit shall be made by the petitioner or some other authorised person with the necessary knowledge of the matters referred to in the petition. The petition is attached to the affidavit and the affidavit is prima facie evidence of the truth of the contents of the petition, which means that unless evidence is produced to the court to show otherwise, the information in the petition shall be accepted as being true. If the petition has been preceded by a statutory demand, the affidavit of service should also be filed in court with it. When the court is satisfied that the petition and other documents are in order, the petition and all copies will be sealed and two (or three if an individual voluntary arrangement is in force) copies handed back to the petitioner. The date and time of filing the petition will be endorsed on the petition and the copies, as will the venue for the hearing of the petition.

Notes: [r6.10, 6.12] [Form 6.13] [r6.11]

 

45.121 Affidavit of service

The petitioning creditor must file an affidavit of service immediately after service of the petition.

The affidavit must have a sealed copy of the petition and, if applicable, a copy of the order for substituted service exhibited to it.

Notes: [r6.15]

 

Where a petition is presented on the basis of unsatisfied execution (s 268(1)(b)) the return must be filed with the petition and must be inspected by the court before the petition can be issued (Re a debtor (No 340 of 1992) ex parte the debtor v First National Commercial Bank plc [1996] 2 All ER 211).

 

The defendant refers 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. 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

 

In light of the above, the defendant gracefully requests that the petition is dismissed as an abuse of process.....