help!!!! lowel/hamptonl stat demand - **Resolved out of Court**

[42man]

You'll need form 6.4 (set aside) and a witness statement - you can find the 6.4 here - http://www.consumeractiongroup.co.uk/forum/showthread.php?86067 with some info here on how to fill it out - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489 as I understand it the affadavit (6.5) has now been replaced with a witness statement which looks like this - (yours will include more than this below)

 

Statement: Defendant

Party:

Statement:

Exhibits:

Date:

 

 

 

APPLICATION TO DISMISS THE STATUTORY DEMAND

 

 

 

PETITION OF MRS (name)

 

 

 

 

 

 

 

_________________________________________________________

 

 

 

statement of MRS (name)

 

 

 

_________________________________________________________

 

 

 

I, Mrs (name) of …………(Address)…………………………… will say as follows:-

 

 

 

I have made statutory requests under s.78 of the Consumer Credit Act 1974 to all alleged creditors including both xxxxx asking for true copies of any agreement relating to the alleged debts. xxxxxx has not complied with my requests and they are now both in the position of being in default of these requests. I do not believe that they have any enforceable agreements for the alleged debts. Their inability to produce any agreement confirms my belief that I am not in debt to them.

 

I believe that the facts stated in this witness statement are true.

 

SIGNED ………………………………………..

 

Mr/MRS

 

 

Dated ………………………………………..

[RDRR]

Regarding the change to using a witness statement rather than affidavit, do you know when this happened? I used form 6.5 for my application and have had no indication from the court that this is not the correct procedure, but I don't want any nasty surprises at the hearing this afternoon.

[42man]

Do you still have the recorded delivery slips / copies of CCA requests you sent out ?

 

It would also be advisable to send a SAR to the original creditors too (but at £10 each this could be pricey) - but effectively you should be seen to be making every possible attempt to get information....is it possible for you to post up the Particulars OF The Claim here ? but leave out exact numbers dates etc....also are any of the alleged debts statute barred too ?

 

I think using a CPR31.14 could help too (but write up the particulars of the claim first before)

[nicklea]

if i am reading this correctly they have put three different debts together in order to go over the magic 750 mark in order to issue the stat demand...this is an abuse of process and you must apply to have this set aside with costs.....they should have put each one in seperately which is obviously not what they have done...the first thing you need to do is to ring the muppet who has signed the stat demand....demand to speak only to them and them alone...do not speak to any of their threat monkeys...insist...if you get through ask them why they have issued demand on a debt that is below the amount required by law and inform them you intend to set aside

 

The above is not correct. They have purchased these three debts and so there is no reason why they cannot claim the full amount that is owed to them.

 

 

alibibsy,

 

You need to download forms 6.4 and 6.5 from here:-

 

http://www.insolvency.gov.uk/forms/englandwalesforms.htm

[42man]

6.5 has been replaced by a witness statement...

[nicklea]

Regarding the change to using a witness statement rather than affidavit, do you know when this happened? I used form 6.5 for my application and have had no indication from the court that this is not the correct procedure, but I don't want any nasty surprises at the hearing this afternoon.

 

It changed 6th April 2010 - over a year ago

[nicklea]

6.5 has been replaced by a witness statement...

 

If you see the link I gave above, form 6.5 is a witness statement

[alibobsy]

I'm in a similar position, and have the set aside hearing this afternoon so I'll let you know how it goes. I have a thread about it but don't think I'm able to post links yet, but you can find it in my post history. It includes links to the forms to apply for a set aside, and there is also a thread somewhere with step by step instructions on how to fill them in.

 

 

Good Luck for today RDRR, I suppose its the unknown that worries us. If we went for it and the set aside was thrown out does the clock restart on the stat demand, ie would we still have chance to negotiate a f & f before they could attempt bankcrupcy.

 

ali x

[alibobsy]

OH decided can't take time off work to do set aside and he isn't confident with the legal arguements. So he has tried to negotiate a f&f as well as asking for the CCA's.They have confirmed they will put things on hold whilst they documents are "located".

Meanwhile they are refusing to consider any offer other than a small 20% ish reduction.I get the impression they think we have the cash and are refusing to pay,but it is simply not true.

I don't work and OH is on a contract due to end in about a week, I informed them we will be on benefits shortly (unless another contract comes at short notice), and we even offered a monthly payment, but they still refuse.

Is there any route of complaint about this as if they went for a CCJ (they haven't gone to court in 4 years as they know there are no enforcable agreements for these accounts) they would have to accept payments .

On paper our house would have equity,but in reality nothing is selling up here and there woul likely be little if anythig left after sale and that would be between us and then split between debts so leabing them virtually nothing.Would they really bankrupt someone for 2k? How muxh does it cost them to go for it.

If you are petitioned for bankrupcy is there any way to defend?

ali x

[debt4get]

you are being extremely foolish if you cannot or will not attend court in order to get this set aside, if they know you have equity then believe you me if they are granted this bankruptcy then that is what they are liable to do...you can risk it it you want to but its your home that will be on the line.....and there is nothing wrong with the legal arguments, you make a stand here or you are possibly going to lose badly..your choice

[debt4get]

The above is not correct. They have purchased these three debts and so there is no reason why they cannot claim the full amount that is owed to them.

 

 

alibibsy,

 

You need to download forms 6.4 and 6.5 from here:-

 

http://www.insolvency.gov.uk/forms/englandwalesforms.htm

yes but you cannot lump them together in order to make the amount 750 and therefore liable for bankruptcy proceedings, they are for different debts..

[Huff&Puff]

you are being extremely foolish if you cannot or will not attend court in order to get this set aside, if they know you have equity then believe you me if they are granted this bankruptcy then that is what they are liable to do...you can risk it it you want to but its your home that will be on the line.....and there is nothing wrong with the legal arguments, you make a stand here or you are possibly going to lose badly..your choice

 

I couldn't agree more. If you don't fight this you will have a long time to regret your decision. They only reason they do this is because of the equity in your home, and they will go after it like greased lighting when they get the SD.

[Guest]

yes but you cannot lump them together in order to make the amount 750 and therefore liable for bankruptcy proceedings, they are for different debts..

 

Hi

Are you sure about this. I know that if this was a business petiton then the debt could be the total of any assigned sum, i cant see it being any different for personal bancruptcy.

 

Peter

[debt4get]

yep even though debt assigned they are in effect different debts from different companies..they cannot just lump them together if they could then we would see dca's sending these bloody things out like confetti...it must be for each debt..if each exceeds 750 then so be it...

[Guest]

yep even though debt assigned they are in effect different debts from different companies..they cannot just lump them together if they could then we would see dca's sending these bloody things out like confetti...it must be for each debt..if each exceeds 750 then so be it...

 

Are you sure

 

I thought the only criterea for bancrupcy is that you are insolvent.

I am sure i have come across cases where creditors have got together in order to present a bancruptcy petition and if this is not true then surely once a debt is absolutely assigned it becomes the property of the assignee and would be an addition to any existing liability that they held. There would only be one creditor then, woulnt they?

 

Peter

 

Peter

[Guest]

Yep thought so

Bankruptcy

1. Creditor's Petition

A creditor's petition may only be presented if:

•(a) The petition is in respect of a debt, or debts, owed by the debtor to the creditors),

•(b) At the time it is presented:

(i) The amount of the debt, or the aggregate amount of the debt, is at least the bankruptcy level (£750);

(ii) The debt, or each of the debts, is for a liquidated sum payable to the creditor(s) either immediately or at some certain future time, and is unsecured (this condition may be waived in certain circumstances);

(iii) The debt, or each of the debts, is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay; and

(iv) There is no outstanding application by the debtor to set aside a statutory demand served by the creditor in respect of the debt or any of the debts.

[alibobsy]

you are being extremely foolish if you cannot or will not attend court in order to get this set aside, if they know you have equity then believe you me if they are granted this bankruptcy then that is what they are liable to do...you can risk it it you want to but its your home that will be on the line.....and there is nothing wrong with the legal arguments, you make a stand here or you are possibly going to lose badly..your choice

 

The thing is its not my choice. the thing is in my partners name and he is really unsure of the legal arguements and doesn't want to try to stand up before a judge and argue them. To be honest he is currently on a short term contract and with a fair commute so leaves the house before 6 and sometimes in alot of cases is not back before 7 at night, his contract is close to the end and he is not really in a position to take time off to go to court either to drop off the papers or to attend the hearing.

 

For them surely the fact he is now negotiating is what they want, and although i don't like it I would imagine for them the fact he is now offering money surely means they won't be in a rush to bankrupt him, especially knowing there are issues around the documentation. Surely they just want their money and bankrupcy drags out the time until they get it (and given the current market around here and the fact our house needs a new bathroom and new back door never mind decorating throughout it is borderline as to if they would get anything).

 

We have been reading on here and other forums and it would appear not to be cut and dried to get the set aside anyway. Cases that are much more clear cut than this are being turned down in court, and I saw one where the judge awarded costs against the consumer. if any of these were statue barred it would be easy to go for the set aside and an easy arguement and neither of us would hesitate, but they are not.

 

So the question still remains is they any recourse when a dca refuses to consider a F&F?

 

ali x

[alibobsy]

Yep thought so

Bankruptcy

1. Creditor's Petition

A creditor's petition may only be presented if:

•(a) The petition is in respect of a debt, or debts, owed by the debtor to the creditors),

•(b) At the time it is presented:

(i) The amount of the debt, or the aggregate amount of the debt, is at least the bankruptcy level (£750);

(ii) The debt, or each of the debts, is for a liquidated sum payable to the creditor(s) either immediately or at some certain future time, and is unsecured (this condition may be waived in certain circumstances);

(iii) The debt, or each of the debts, is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay; and

(iv) There is no outstanding application by the debtor to set aside a statutory demand served by the creditor in respect of the debt or any of the debts.

 

thanks Peter at least that confirms they can roll them up together. Just wondering though about the bit where it says that the debtor appears either unable to pay or no reasonable prospect of being able to pay? Does that mean we could defend any petition and argue we could pay the amount over a reasonable time (assuming OH was back in work and arguement regarding unenforcability fail before the judge?). Would a judge look unfavorably at a company that brings a peitition whilst not entertaining reasonble f&f's or regular payment offers made?

 

ali x

[BRIGADIER2JCS]

Most business bankruptsy is started by the creditors.

A meeting is called of all the creditors the they then decide on the course of action

winding up/appointment of administrators etc.

All creditors have to ''prove'' there claims within a fixed period of time.

[Guest]

thanks Peter at least that confirms they can roll them up together. Just wondering though about the bit where it says that the debtor appears either unable to pay or no reasonable prospect of being able to pay? Does that mean we could defend any petition and argue we could pay the amount over a reasonable time (assuming OH was back in work and arguement regarding unenforcability fail before the judge?). Would a judge look unfavorably at a company that brings a peitition whilst not entertaining reasonble f&f's or regular payment offers made?

 

ali x

 

HI

 

YOU can defend the bankruptcy petition if you can show that you have access to funds in exess of the amount claimed. ie you would be solvent.

Othewise you have to demonstrate that the sum claimed is incorrect or you do not owe it. It will not do to show the agreement is unenforceable no matter what you may read on here.

Unenforceability is another issue, even if the agrement was IE the sums would still be owed and still count towards your debts.

You have to show that the sums themselves are disupted. They may owe you money through PPI for instance which makes the sums incorrect , or the calculations of interst may be wrong. THere is a list on sequencies thread that i am sure you have seen.

Best of luck Peter

[Guest]

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.
  

peter

[alibobsy]

Thanks for the info Peter at least we know the exact situation.

We are thinking that once this is sorted, we perhaps should get any other outstanding unenforcable debts settled by F & F. Otherwise they may still come back to bite us on the butt so to speak later on.

 

I still intend to complain to the oft. I think the law should mean that consumer debt should have to have passed through the CCJ stage before they can go to bankrupcy, this would at least give people a chance to challenge the debt in court as well as ensuring the debt collectors can't abuse the process for debts they know are unenforcable against a ccj.

 

To be honest just want to get the matters sorted now so that in a couple of years when the last bits fall off our credit file the matter is closed for good.

 

Thanks to all the posters who replied, will update once things progress.

[Guest]

HI

Yes personally I do not think that stat demands should be appropriate on Consumer credit debts.

Whilst the debt was still “under an agreement “ of course they could not touch you, it would have to terminate it first, and the act says that before they can do that you would have had to defaulted(section 87).

Under the normal course of events at this point the creditor would sue for all liabilities under the contract. You could still argue that the debt is not due in the bankruptcy hearing of course.

The problem is that the criteria is different, they are simply looking at if you owe the money or not. They are not concerned with the proper execution of the agreement.

You would think that it would be appropriate to say, “I don’t owe the money because the agreement was improperly executed”, but this does not seem to work. The reason being that the Lords said that an unenforceable agreement does not remove the creditor’s right to his money just the right for the agreement to be enforced.

It is a bad loophole to the benefit of the creditor in my opinion. But we are stuck with it. For now

Peter

[alibobsy]

Just to update after advice on here,,plus, discussions, on, other, forums,as, well, as, further legal advice we decided we couldn't risk the house and bankrupcy.

We have 4 young kids and our finances are getting back on track-ccj's dropped off and within 2 years ish both our files will be clear. On paper our house has equity, although I reckon with settlement fees on the mortgage, costs and the stuff that would need doing on the house to sell it-new back door, kitchen etc I think it would be a close call, the debt collectors won't take that into account.

 

In the end we negotiated with them and sorted F & F's- so paid less than the demand. More than I wanted to pay but at least its sorted now.

 

Wanted to post just to give an end to the thread as so many seem to finish with nio conclusion. Thankyou to all the posters whatever your advice, its good to get different opinions.

 

Thankyou in particular Peter, just wondering if you have seen RD's thread, he was in simular situation to me and tried for a set aside which he lost. Now looks like the bankrupcy action is starting.

 

Ali x

[Bazooka Boo]

Well at least you have carried this out to your satisfaction and have dealt with it how you wanted. It matters not if the F&F were slightly higher than you wanted, it is done and dusted now so you can relax and sleep in peace...

 

Well done for doing what you have done, and remember it is YOU that has done all of the hard work, so you should be proud of yourself, you have taken advice and used it to your advantage, well done.