capquest - stat demand received - hbos Credit Card - **set aside**

[superstarjan]

thank you djp13, that did help.

 

We've received a letter today from the court stating that the application will not be given a hearing date immediately, but will be referre to a district judge . if he doesn't dismiss it, then a hearing date will be sent out to both us and capquest

[superstarjan]

we've had a letter today giving the hearing date. What I really need to know now (for myself) is what can I actually do, as my partner is leaving everything up to me (he hasn't even read through the witness statement) and I'm not sure if I can even go to court with him and speak up???? Also, we jointly own the house and contents, what will happen to my share in the event that he is made bankrupt?? Please help, I am tearing my hair out !!

[superstarjan]

Please can anyone let me know what will happen if my partner is made bankrupt? Does it happen there and then on the hearing date?

[42man]

OK... relax, you will be allowed to speak on your husband's behlaf....but he needs to know a little about what has been said in the defence. You need to start showing some resolve, not be a soft target and showing the judge how angry and upset you obviously are at having a frivolous statutory demand thrown your way....it is unlikely Capquest will appear in court !!....

[42man]

And it is an opportunity for you to dispute the alleged debt.....and if the judge does even allow it to proceed to BR stage, then you can still fight it then. But even if for some reason it isn't going your way then you need to ask the judge to order Capquest full disclosure.....by the time it gets to court, it is unlikely that they will have complied with your request.....

[42man]

Jan...how are you getting on with this ?

[superstarjan]

Hiya, we are in court in two weeks time. My partner has received a pile of papers from capquest now, but it doesn't seem to be enough, it's mostly their own notes about how many times they've rang him etc. no agreement or copies of correspondence from hbos. hbos haven't responded to the SAR sent to them yet either.

I'm still really unerved about it all tbh.

[42man]

Jan....don't forget to submit your costs, so that they are in the court at least 24 hours before the hearing...have a read here - http://www.consumeractiongroup.co.uk/forum/showthread.php?211818-Lowell-Hampton-Statutory-Demand-***-WON-COSTS-***/page3

[superstarjan]

thanks 42 man will do that!

 

We have now received the SAR stuff from both capquest and hbos. It's all gobbledygook tbh but there is a signed credit agreement in the hbos stuff. The hbos stuff however doesn't contain any capquest stuff (i guess this is because it was sold on?) obviously this is stated in the witness statement (that we haven't received it) so shall we just ignore that bit now ?

 

The nerves are kicking in something shocking!!

[superstarjan]

We have today received a witness statement from capquest. They are not going to attend court

[42man]

Are you ok to type it up here ? (or alternatively PM it if you want to SSJ)

[superstarjan]

its 3 pages long, i'll scan it in, give me 10 mins!

[superstarjan]

here it is:_

[42man]

Complete and utter rubbish.....WHY oh WHY did they even bother to send out a stat demand if they weren't prepared to follow it through in the first place.....not putting the name of the court IS an abuse of process - I would also recommend you print THIS out and show it to the judge - http://www.oft.gov.uk/shared_oft/press_release_attachments/1stcreditrequirements.pdf

 

You can also tell the judge that IF they intend to base a demand on an agreement then they should attach that document to the demand AND the default notice too.....!!

 

As for the delivery by post then you must quote this

 

'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. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

[42man]

I do hope you report this to the Office Of Fair Trading.....YOU MUST

 

You can also mention this too - Say that it is not an appropriate debt to base a statutory demand upon as it requires a form of accounting. Statutory demands are the basis upon which a bankruptcy petition is presented. The bankruptcy petition (and in turn a stat demand) can only be based on what are called liquidated debts i.e. debts which are fixed, as it were which do not require a form of accounting. A credit card debt would need a form of accounting to calculate it and so is an inappropriate debt to base a demand upon.

[superstarjan]

thank you 42 man! I'm feeling a bit more confident now. I think I'll prob be doing most of the talking in court, will that be a problem?

[42man]

Absolutely not.....speak a little bit louder than normal, call the judge Sir or Madam. Be brave, and do show the judge how angry and distressed you are at having to deal with this....

[superstarjan]

sorry to be a pain, I'm looking to submit the costs today, but I've been searching round for hours, I can't seem to find how to do it? I followed your link above, then on to other threads from that, it's taken up the last 2 hours and I still haven't found it can you send me a direct link to it ?????

[42man]

You're not a pain at all SSJ....

 

Costs For

set aside Application Case No xxx

 

xx Court xxx April 2008

 

Rate Claimed Litigant in Person rate of £9.25 / hour

Travelling Costs HMRC Approved Mileage Rate of 40p / mile

 

1) Time spent identifying and understanding relevant legislation.

Time spent identifying and understanding relevant case law.

Time spent preparing affidavit and skeleton argument.

 

18 hours £166.50

 

2) Time spent communicating with Respondant and swearing affadavit

 

2 hours £ 18.50

 

3) Loss of day’s wages for attending court on xxx April 2008 £ 80.00

 

4) Travelling costs for return journey to court 2 x 20 miles £ 16.00

 

Total £281.00

 

Notes

 

Before undertaking this myself I approached a solicitor to handle this. I was given an estimate of 3 to 6 hours at £170/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 collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner

[superstarjan]

thanks again I'm onto it now!

 

- is the rate of £9.50 an hour standard, or is it because capquest have requested that this be the amount?

[42man]

This is the 'normal' Litigant in person amount...but I have read somewhere that you can charge one third of the amount a solicitor asks for....but i'm not completely familiar with this....

[superstarjan]

do we have to take this into court, or can we post it?

[42man]

You can post it or take it to court, but it must be in the case file at least 24 hours before the hearing........

[superstarjan]

I'm taking the cost in this morning ready for tomorrow's hearing

[superstarjan]

42 man, I've printed out the 1st credit document that you've said to show to the judge. In your opinion, is there anything on it that I should hilight more than others? I think it's a bit long for him to read there and then, or am I wrong?