Connaught Collections - Statutory Demand Received - **SET ASIDE GRANTED**

[BRIGADIER2JCS]

Not compliant imho lets see

what others think

 

bump

[alf2009]

Dear BrigadIer2jcs, Thank you for the reply.

 

I am copyiing the defence from the 'Recieved Connaught Statutory Demand Today 2009' thread, and am confused as to whether I should include all the references to The Consumer Credit Act 2006 and the references to case law, or are they just there for me to read and understand the context of the defence?

[BRIGADIER2JCS]

NO I suggest keeping it to

the basic reasons for the set aside.

others may know more.

 

Bump

[alf2009]

Sorry to keep coming back but form 6.5 starts out by saying:

 

1. That on (b)

the statutory demand exhibited hereto and marked “A” came into my hands.

 

whereas actually it was posted through the letterbox by the courier/postman, am I splitting hairs by changing it to that effect or is it simply a statement that I got it anyway?

[alf2009]

Submitted teh forms 6.4 and 6.5 today. The court listed in the SD have no juristiction over Insolvency matters, and they said they are fed up with having to redirect people to the High Court miles away.

 

There was no charge to submit the forms though I only expected to need two copies and actually needed three. I was suprised to hear the clerk say that the Registrar would look at the claim and in 7-10 days decide whether to set a date, or strike it out or another decision I didnt understand - Ithought it was simply set a date.

 

I am now writing to the OFT, not 'served' but simply posted and wrong court address, added to the list of grevances.

 

I noticed on this website the suggestion that if it isnt 'served' by hand, it cannot proceed to a bankruptcy hearing anyway?

 

 

http://backcollect.com/?page_id=97

 

Can I proceed to bankrupt someone once I have served a Statutory Demand ?

7.6****** You can only proceed to issue a bankruptcy petition if the completed Statutory Demand form was served on the individual in person, you cannot if the Statutory Demand was served by post.

7.7****** We must provide proof of service, so we will employ a process server to carry out the personal service of the Statutory Demand on the debtor. The court is not involved in the issuing of statutory demands, so no court fee is payable, although there are costs to pay.

7.9****** You should not issue a Statutory Demand by post if you wish to immediately issue a bankruptcy petition once it expires. We do not recommend issuing a statutory demands by post. There is NO guarantee of payment.

[Morby68]

Afternoon all . Just an update and a bit of info . I have made the set aside application and have a court date set for a couple of weeks time . Just wondering if anyone has any advice about what is likely to be covered in the hearing and do Connaught have to file a defence to the application before the hearing .Also , if relevant , what costs can I recover ? Can I reclaim the postage charges for sending CCA request , CPR request and SAR request special delivery and my photocopying costs - if so will I need receipts . Also can I claim anything for the significant amount of time I have had to spend preparing for this case . If so how would I calculate it . Any advice greatly appreciated

[Morby68]

Afternoon all . Just require a bit of advice . I have submitted an application to set aside a statutory demand and have a court hearing scheduled in a couple of weeks time . I was wondering whether the DCA need to file a defence before the court hearing and/or what will be covered at the hearing . Secondly and hopefully , I wonder if I can recover any costs associated with having to deal with the SD like the postage costs of sending CCA request , CPR 31.14 request and SAR request by special delivery and any photocopying costs - if so will I need receipts . Is it also possible to claim anything for the time I have had to spend in preparation for the set aside and hearing . If so , how would I calculate it . Finally , what is the procedure for claiming the costs . If I am successful do I just ask the judge to award costs or do I need to file a schedule before the hearing . Any advice gratefully appreciated .

[miss muppet]

Afternoon Morby, yes you can and certainly should claim costs, here's a link to be going on with back in a sec with another with costs posted by "only me":-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?319215-Served-with-Statutory-Demand-by-CapQuest-would-appreciate-some-help.

[miss muppet]

Here you go:-

http://www.consumeractiongroup.co.uk/forum/showthread.php?315062-Capquest-Statutory-Demand

 

Don't forget your complaint to the OFT as well as this is an abuse of process, if the creditor is Capquest Silverfox has a thread devoted to complaints.

[Morby68]

Thanks miss muppet , much appreciated . I will sort out a costs schedule and submit 24 hours before the hearing date . Just one other thing . Do the DCA have to serve their defence on me or just send it into the court . Do I have to keep checking with the court to see if a defence has been filed or is the DCA obliged to inform me and if so , how long before the hearing.

 

P.S I have already filed a complaint with the OFT about these clowns

Edited October 1, 2011 by Morby68

[miss muppet]

Hi Morby, it is a witness (witless depending on your point of view) statement and in our case they sent it to daughter via special delivery and also sent it to court.

[Morby68]

Thanks miss muppet . Just one more point . What happens if the DCA does not respond or make any contact before the hearing but then at the hearing offers a defence . How is the judge likely to view this .

[Morby68]

Afternoon all . The whole PPI thing is a bit new to me but I am trying to sort out an issue for my wife . She currently has a Barclaycard Credit Card on which I noticed she was paying PPI to Aviva . She unfortunately isn't a great one for studying her bills .She has contacted Barclaycard and they will cancel the insurance and have said they will investigate her complaint . She says she can't remember taking out this insurance but her card was originally a Morgan Stanley card which was then acquired by Barclaycard.Obviously she may have no claim but I guess there's nothing wrong in getting a bit of information . My question is do I need to send a SAR request to both Morgan Stanley and Barclaycard and is the letter on the sticky still the best one to send .Any help greatly appreciated

[ims21]

Hi

 

SAR to BC is sufficient as they took over MS stuff completely.

 

SAR template is the in the CAG library, the link to which is at the top of every CAG page in green

 

Regards

 

ims

[african_igbo]

Hi,

 

FYI I had a an old Alliance & Leicester Credit Card and the Santander took over the Company and I had very little to go with.

 

Santander settled within the week. Fortunately for me Santander are my main Bank where my salary gets paid into so when I returned the Letter of Acceptance, the monies was in my account the next day.

 

Thats how Banks should perform like - comprehend Barclays.

[miss muppet]

Sorry for the delay in replying - been busy last few days - well, they didn't have to in the past and seemed to get away without turning up so guess the answer is there is one rule for them another for us, never mind just swot up as much as you can and sting them for costs.

[Morby68]

Evening all , just want a bit of info about likely court costs . I attended court today for what turned out to be a Directions Hearing . The DCA were going to ask for an adjournment as they turned up for the hearing with a witness statement , an illegible mess which was apparently the original agreement and a letter purporting to be the Notice of Assignment . However , they had not yet received the Default Notice from the Original Creditor .

The judge gave them 4 weeks to provide the relevant documentation and then me a further 4 weeks to respond .

The issue I have got is that the DCA were represented by a barrister . I am not sure if this is because they think they have a weak case or not but obviously I now have to think about the likely costs if I were to lose particularly with a barrister involved .

Any ideas as to what I may be looking at in terms of costs and thoughts about what's the best course of action . All help greatly appreciated.

[Morby68]

Evening all . Just wondering if anyone has any thoughts about the best way to take the case forward

[miss muppet]

Evening all . Just wondering if anyone has any thoughts about the best way to take the case forward

 

Morby please don't worry on the costs score, you are not going to lose this as long as you are up on all the case law, have a look at the Capquest threads by using the search button, 42 Man has some excellent information in those threads, if they return whether they are Barristers or not, they have to have more than an illegible agreement, have a look at CCA 1974 section about illegible documents and also no default notice, naughty naughty, you have to do lots of searching on here but the more you mug up on it the more confident you will become - OK? MBNA thought they were going to get an SJ on me and provided a pathetic blank agreement and wrong date default notice, game over as far as the DJ was concerned and costs to moi!

[Morby68]

Evening all . I am currently attempting to have a Statutory Demand set aside . The other side had a barrister turn up to represent them at the Direction Hearing .

 

Although I think my case is strong , I also do not have complete faith in the English legal system . If I did lose , I will potentially have a large legal bill and could do with a bit of advice

 

1 . Would I be expected to pay the other side's legal bill in one go and ,obviously as I couldn't do that , what would happen then

 

2 . Would the costs be added to the amount specified in the statutory demand to form a new amount owed

 

3 . As it's Christmas , I can hope but if I was to win the lottery would I only need to pay the original amount specified in the statutory demand to satisfy that demand .

 

Any help gratefully received as this is my first experience of the court system

[rebel11]

Hi morby

 

The guys will be happy to advise as soon as they are available.

 

Keep a detailed diary of the creditors conduct i.e. if the court have set a deadline, does the creditor comply. If they don't thats classed as 'unreasonable behaviour' by the court. So that will help against their costs claim.

[citizenB]

Just giving this a little nudge for you

[Morby68]

Hope everyone is having a good Christmas . I am in the middle of trying to get a statutory demand set aside and have the hearing in a few weeks . I based my application on 3 points ;

 

1 . The respondent has failed to provide copies of the credit agreement

2 . I have never received a default notice

3 . I have not been served with a notice of assignment

 

I have now received a witness statement from the respondent dealing with these points and would welcome any thoughts as to how I stand :

 

1. COPY OF AGREEMENT

 

The respondent has supplied a photocopy of what is apparently the signed front page of the agreement although it is a poor copy and not all of it is legible . Along with this they have attached the standard terms and conditions at the time the agreement was made in 2005 and the standard terms and conditions as varied and in force at the date of termination plus an e-mail from a member of staff at the parent group of the original creditor confirming these terms and conditions applied .

 

2 . DEFAULT NOTICE

 

The respondent admits that they do not have a copy of the default notice . They have submitted an e-mail from a member of staff at the parent company of the original creditor stating that the agreement was terminated and a default notice would have been sent 30 days before . They have also attached a template of the default notice that would have been sent .

 

3 . NOTICE OF ASSIGNMENT

 

I have received from the respondent what they say is the notice of assignment . It looks official but it is a photocopy and is dated the same day as the first letter I received from the respondent .

The respondent also states that they don't have to prove I received the notice of assignment as according to s196 (3) of Law of Property Act 1925 and the binding authority of Neuberger J in his decision in Kinch v Bullard [1998] , they don't have to serve it by registered post - sending it to my last known place of abode is okay . Even though I've never received this ' notice of assignment ' , it is difficult to disprove they put it in the post .

 

Once again , any thoughts would be gratefully received as I feel that they only issued the Statutory Demand to bully me into paying more than I can . I have made them quite aware that I don't understand why they would make me bankrupt as the only asset I have is a half share in my home and that is in major negative equity and is likely to be for a number of years .

[dx100uk]

5 threads merged

please keep to ONE THREAD

for this debt please

 

dx

[dx100uk]

these are some of the reasons you can use to set aside including the acts needed hope it helps

 

The Defendant totally disputes the debt.

The alleged creditor has not provided a valid notice of assignment

The alleged creditor has not provided a legible copy of the agreement that contains the prescribed terms and is executed.

The alleged creditor has not provided any compliant default notice as required by the Consumer Credit Act 1974

The alleged creditor has not provided any statements for the duration of the account (it not being uncommon that some debts are made up entirely of excessive charges

The alleged creditor has not provided any proof that the alleged debt has been securitised under English law

Under section 78 (1) of the Consumer Credit Act a formal written request for any true copies of signed consumer credit agreements was sent to ******* via recorded delivery on the ********** (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

I believe there are no properly executed signed Consumer Credit Agreements

SECTION 78 (1) CONSUMER CREDIT ACT 1974

(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 £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.

The Consumer Credit Act in section 78(6) States that

(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;

It must also be noted that the agreement must contain the prescribed terms.

Consumer Credit Act

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above 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. (cont)

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)

REFERENCE TO CASE LAW

 

 

 

 

As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:

‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy demand was issued.

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 amendment] 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 Defendant denies that he is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. 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

 

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

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

As a lone parent/low income earner/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 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).

 

leeched from debt4get post - dx

see also:

http://www.consumeractiongroup.co.uk/forum/legal-issues/162131-statutory-demands-service-post.html#post1738221

dx