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help with a statutory demand


burnie2487
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Hi all, I would appreciate some advice.

 

Today a gentleman came to my door, and as I was expecting a delivery, he confirmed my identity and gave me a statutory demand form 6.1.

 

It has been signed by the general manager of Merit Finance Limited, Simon Higgins.

 

I did have a loan with them from 2001 whilst I was in the Army, although I was mis-sold PPI. I didn't discover this for a while and when I got into financial difficulties, I told the company but they weren't interested.

 

Subsequently, due to other debts I sold my home, moved around a lot, and the last time I paid them any money was the beginning of 2005.

 

So a loan of £2500 with PPI(I was in the Army so I didn't need it) with some payments on it has now ballooned to £6484.15.

 

I'm already broke, and if they make me bankrupt, I'll lose my job and house.

 

Anyone have any suggestions what to do next or how to deal with this company?

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Hi burnie

 

Welcome to CAG

 

The guys will advise as soon as they are available. You should claim that PPI back with Compounded Contractual Interest, although it's been some time.

 

http://www.moneysavingexpert.com/reclaim/ppi-loan-insurance

 

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.

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

 

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

 

It might be an idea to get a SAR Request off to them Immediately, they will send you all the data they have on the account, you

should get statements that show the amount of PPI each month, plus any charges they've added. They have 40 days to send the DATA. Templates and spreadsheets can be found on this site.

 

http://www.consumeractiongroup.co.uk/forum/content.php?552-Data-Protection Send it Recorded Delivery.

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Merit Finance is a nasty little operation that buys debts near to being SB.

 

Have you ever received a notice of assignment from anyone, saying the debt had been sold?

 

Have you received regular annual statements as required by law?

 

Looks like they have added a lot of interest which they may not be entitled to do.

 

However, the PPI plus interest may more than wipe out what is owed – you may even have cause for a counterclaim.

 

Who was the original loan taken out with? It would not have been with Merit, I doubt.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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Thanks for the replies so far, however my immediate concern is that I have 17 days to reply to the Stat Demand but Merit can take up to 40 days to reply to a SAR request.

 

Therefore I can't make a defence against any of:

  • 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.

I'm at the point of not knowing what to do for the best.

 

Should I just ring Merit and pay them?

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Have you ever received a notice of assignment from anyone, saying the debt had been sold?

 

Have you received regular annual statements as required by law?

 

Who was the original loan taken out with? It would not have been with Merit, I doubt.

 

Can you answer these questions? Plenty of time for CPR and the set aside.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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Have you ever received a notice of assignment from anyone, saying the debt had been sold?

 

  • Not that I'm aware of.

Have you received regular annual statements as required by law?

  • Never received any statement

Who was the original loan taken out with? It would not have been with Merit, I doubt.

  • The company was originally called Microloans, seem to deal with a lot of Armed Forces. On the SD the loan is with a company called Imperial. I believe they are/were both the same company.

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Burnie....in my opinion the fact that the loan is tainted with missold PPI would be enough to set this aside on it's own without all the other aspects (it is well known that once missold PPI is evident then the whole agreement is brought into question !!...I strongly suggest that you do set this aside, you can find plenty of useful links in here on stat demands - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes they are hoping and praying that you do not know what to do and will curl up and do nothing or pay up for lack of knowledge. The fact that the missold PPI and excessive charges (and possibly a secret/undisclosed commission - if taken out via a broker) could mean that they may owe you more than you owe them....please do shout if you need some help though.

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Don't get confused by CPR, this stands for Civil Procedure Rules, but unfortunately i'm pretty sure you can't use these as stat demands are governed by the Insolvency Rules and not the Civil Rules.

 

If you can type up the particulars on the demand here (but don't be specific with the numbers) I would also suggest you send a CCA request off ASAP - which you can find here - send it recorded with a £1 postal order and do not hand sign the letter, this should be sent to whoever owns the debt now (sounds like Merit) - http://www.consumeractiongroup.co.uk/forum/content.php?414-CCA-request-letter.

 

A SAR is highly recommended too, ok so it may take 40 days, however you have to be seen to be making a 'reasonable' effort to get information. And unless you turn up in court to defend your stat demand and a judge orders the other side to produce the key documents which are

 

1 - The agreement

2 - The default notice

3 - The termination notice

4 - statements for the duration of the account

5 - the notice of assignment

6 - the deed of assignment

 

You are disputing the account due to

 

Missold PPI

No notice of assignment therefore the debt is incapable of being legally collectable by Merit

Deed of assignment - again is it capable of being legally collectable under UK law

Default notice - (read through the stat demand threads in the Legal Success forums) Bear in mind the default notice will be incorrect as PPI has been missold

The agreement - you'll read plenty about agreements here until your head spins, but do try and read as much as you can)

Excessive charges - again you'll read plenty about these too

Statements for the duration of the agreement (excessive charges ??)

 

Have a read of this thread you will find it interesting and try and understand it - http://www.consumeractiongroup.co.uk/forum/showthread.php?170345-A-Tale-of-a-Dodgy-DN&highlight=

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Also can you please post up an address on the demand for Merit Finance ?

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Also the Merit Finance Ltd. I find on the OFT's Licence Register...well their licence lapsed in 2008 !!!

 

Application / Licence Details

 

 

 

Licence Number:0541569

Licence Status:Lapsed on 15/08/2008

 

Current Applicant / Licensee:

 

Business NameCompany Registration NumberMerit Finance Limited4538853

 

Categories:

 

Consumer credit Consumer hire Credit brokerage Credit reference agency Debt adjusting/counselling Debt collecting

 

Right To Canvass Off Trade Premises:Yes

 

 

Issued Date: 15-Aug-2003

 

 

Legal Formation:

 

Body Corporate (incorporated inside UK)

 

Current Individuals that run the organisation:

 

NamePositionLinda Marie GillsOFFICERRonald Francis HigginsOFFICER

 

Nature of Business:

 

Debt Collection

 

Current Address(es):

 

Address TypeAddressPrincipal Place Of BusinessWestmead House, Westmead, Farnborough, Hampshire, GU14 7LPRegistered OfficeOak Green Lodge, The Common, Hartley Wintney, Hants, RG27 8RZ

 

Historic Address(es):

 

Address TypeAddressPrincipal Place Of Business154A, Fleet Road, Fleet, Hants, GU51 4BEPrincipal Place Of BusinessOak Green Lodge, The Common, Hartley Wintney, Hants, RG27 8RZPrincipal Place Of BusinessWestmead House, Westmead, Farnborough, Hampshire, GU14 7LPRegistered Office154A, Fleet Road, Fleet, Hants, GU51 4BERegistered Office50, Fountain Street, Manchester, M2 2ASRegistered OfficeOak Green Lodge, The Common, Hartley Wintney, Hants, RG27 8RZ

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Hmmm...just found another Merit Finance Ltd. who's licence IS valid

 

Application / Licence Details

 

 

 

Licence Number:0621551

Licence Status:Current

 

Current Applicant / Licensee:

 

Business NameCompany Registration NumberMerit Finance Limited04538853

 

Categories:

 

Consumer credit Debt collecting Provision of debt-adjusting on a commercial basis Provision of debt-counselling on a commercial basis

 

Right To Canvass Off Trade Premises:No

 

 

Issued Date: 13-Jul-2009

Date Maintenance Payment Due: 12-Jul-2014

 

 

Legal Formation:

 

Body Corporate (incorporated inside UK)

 

Current Individuals that run the organisation:

 

NamePositionLinda Marie Higgins Ronald Francis Higgins

 

Nature of Business:

 

Other

 

Current Address(es):

 

Address TypeAddressPrincipal Place Of BusinessOak Green Lodge, The Common, Hartley Wintney, Hampshire, RG27 8RZRegistered OfficeOak Green Lodge, The Common, Harltey Wintney, Hampshire, RG27 8RZ

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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OK, thanks for the help so far.

 

I've printed the CCA request letter which I will post in the morning.

 

I've tried to follow the thread 'A Tale of Dodgy DN' but its way over my head.

 

So I've now got 17 days left, what do I do next?

 

By the way rebel11, your link doesn't work I'm afraid.

Edited by burnie2487
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“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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It did work honest, but then its on the OFT website, I've replaced it so you get the gist.

 

OK, thanks for the help so far.

 

I've printed the CCA request letter which I will post in the morning.

 

I've tried to follow the thread 'A Tale of Dodgy DN' but its way over my head.

 

So I've now got 17 days left, what do I do next?

 

By the way rebel11, your link doesn't work I'm afraid.

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By the time it gets to court, it is unlikely they will be able to provide all the paperwork required....even so the missold PPI is exceptionally stronger !! And yes you MUST apply to set it aside, (which is free), it is way, way easier to defend a stat demand than it is a bankruptcy petition, as the dispute should be raised at the stat demand stage....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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The statutory demand must contain the name of the nearest court to you that handle insolvencies (as not all county courts do) you can check if the court named on the demand is a) your closest and b) that it also handles insolvencies/bankruptcies (as not all county courts do) - you can check here - http://www.hmcourts-service.gov.uk/infoabout/county/index.htm ....the demand should also contain a telephone number and address of the claimant -

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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Thanks 42, however is there a simple idiots guide to applying for a set aside?(As in designed for real idiots like me)

 

I've tried to follow some of the threads and comments but the 'legalese' of it all is baffling.

 

I really don't know where to start!!:sad:

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OK...firstly what I would like to know is what do the 'particulars of the claim' just type them out here (but leave out dates and amounts which might identify yourself)

 

You will need forms 6.4 (set aside) and 6.5 (affadavit) which you can find here - http://www.consumeractiongroup.co.uk/forum/showthread.php?86067

 

This thread here will help you in what you have to write in the 6.4 - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489

 

You need to check that the court named on the demand is your nearest court that handles bankruptcies/insolvencies - you can check here - http://www.hmcourts-service.gov.uk/HMCSCourtFinder/ (as not all county courts handle bankruptcies/insolvencies) you would be surprised how many solicitors/claimants get the wrong court and it can be adjudged as an abuse of the process....there should also be a telephone number for you to contact the named person on the demand, if there is no telephone number then it could also possibly be an abuse of the process....

 

Once you have filled out your forms 6.4 and 6.5 you need to get them sworn in wich at your local county court is free, a local solicitor will charge you £5, there is no fee to pay to the court unless you file a stat demand over the time limit (which is 18 days from receipt of the demand) MAKE SURE YOU MAKE COPIES OF EVERYTHING

 

As for your form 6.5 then if it was me I would be writing the following.

 

The alleged debt is totally disputed.

 

The agreement is subject to a major case of missold PPI which in itself renders the agreement tainted.

 

The claimant has failed to provide a copy of the agreement despite a request made under the Consumer Credit Act. I refer to -

 

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

 

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

 

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (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 [F1 £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.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interestlink3.gif or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(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 claimant has provided no notices or deeds of assignment rendering the debt unenforceable under UK law.

 

The claimant has not provided any default notices in the prescribed form.

 

The claimant avers that the debt contains a significant amount of excessive charges.

 

Just in case the judge brings up the new CCA regulations from 2006, then quote this to him....your agreement is alledged pre 2006....

 

PRE 2006 agreement 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.

 

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.

 

 

 

Ian McCartney

 

Minister for Trade, Investment and Foreign Affairs

 

 

 

 

Department of Trade and Industry

23rd January 2007

 

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 amendmentlink3.gif 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 IMPORTANCE OF THE NOTICES OF ASSIGNMENT

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

 

In light of the above evidence, The defendant gracefully requests that the statutory demand is set aside and costs warded to the defendant.

 

As a low income family with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

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 collectionlink3.gif 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).

 

 

 

 

 

  • Haha 1

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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I will add some more to this later for you.....do your very best to understand what is being said here...

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

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Particulars as follows:

 

1. Your creditor claims against you the sum of £XXXX.XX in respect if the following:

 

The debtor entered into a loan agreement with Impxxxx Finance on XX month XXXX. By various assignments, Imp assigned the amount due under the agreement to the creditor. The debtor is no longer making any payments, and the last payment was made on the XXth March 2005 and the balance of £XXXX.XX is now due and payable.

 

And the sum due to your creditor as at the XXth month 2010 is £XXXX.XX.

 

Thats it.

 

Many thanks to everyone for their help so far, Merry Xmas.

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I love the way it says 'by various assignments' !! how spurious is that !! Your defence is started I will add some more for you over the next few days....

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

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I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

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 collectionlink3.gif 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,

 

I really do feel bad saying anything that might , in any way, be taken as a criticism of you given all the good you do on here.

 

However, on this one small area I feel that I do have to.

 

With respect to costs, the costs for a LIP are limited to a maximum of two-thirds of the amount which would have been allowed to a solicitor for doing such work under CPR 48.6(2).

 

The quote above has been cut and pasted from my own costs application when I set aside a stat demand a couple of years ago:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?133153-Statutory-demand-for-credit-card-debt(bankruptcy)Help!&p=1529356&viewfull=1#post1529356

 

and claimed costs of £281

 

I made reference to approaching a solicitor and the quote they gave me so that I could demonstrate that my claim was for less than two-thirds.

 

I also included the case law as I wanted to have costs awarded on the indemnity basis rather than the standard basis.

 

Unfortunately, some people just didn't understand those points or even realise that those points were even being made and just cut and pasted things totally out of context.

 

Costs do have to be actually incurred and you cannot simply claim for the amount of money that a solicitor quoted you for unless you actually used that solicitor and they charged you that amount of money.

 

Sorry to be saying this to you on Christmas Day.

 

Edit

 

ps - totally agree with you about 'by various assignments' - it would be fun to be in the room when they try to make a case with that

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Absolutely no need to apologise NL....your input is most welcome indeed !!!

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

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