Capital One/Cabot account sale

[BRIGADIER2JCS]

42 man is the guy you need he is very

well informed on this.

[Desperate Daniella]

Thank you, Brigadier. I don't think he's here at the moment, but don't panic, dasby, as we've got the rest of the weekend, and also someone else on the site team might be around if he isn't.

[BRIGADIER2JCS]

Far as I can see Bankfodder is the only site team

member around at present.

[Desperate Daniella]

Well, I don't know if that is one of his areas of expertise, but if not I'm sure some others will be back later.

[BRIGADIER2JCS]

Did you Pm 42man and ask him to look in?

[dasby]

By the way, it says they "may" [attempt to] make you bankrupt. It will cost them quite a lot of money to do so, and if they think you have lots of other creditors they may not get their money back anyway, so let's hope that they don't decide to do this even if the SD has gone through. Anyway, let's hope you can get it set aside.

 

In your letters where you offered payments and tried to settle, did you make it clear that you had lots of other creditors which is why you could not afford to pay them?

 

Hi DD,

I explained to Cabot that I have several debts which my current income prevents me from paying. Unfortunately it looks like using bankruptcy has taken the pursuit of unsecured debts to another level which makes it much more problematic for a debtor with any assets. I read that the key for them is to check to see if the debtor has any equity in a property then they issue a statutory demand for the full amount. The debtor is then in a position of

Try to get it set aside, which means going to court to persuade a judge the debt is not owed or that it is offset by charges and PPI.

or trying to raise money to pay off the debt in full.

 

The CAB told me that if the creditor issues a bankruptcy petition it costs them a few hundred pounds. The CAB think that some creditors use this to try to force the debtor to sign a Voluntary Charge over their home, with a guarantee to pay within a certain timescale.

If the creditor is not satisfied the court can then make the debtor bankrupt. This is pretty worrying because (if I understand it correctly) all the debtors affairs are put into the hands of the Official Receiver who gets control of bank accounts and any financial dealings. Any cars and valuables can be sold by the receiver to pay off all the debts. The bankrupt cannot have a bank account or run a company or business. The receiver has the power to order the debtors home to be sold. I was told this can happen even where they have joint ownership with a partner living there too. It seems that a creditor carefully choosing who to bankrupt is almost certain to collect 100% and get their costs back too.

 

This is much more worrying than creditors taking the CCJ route and well outside any compliance with the OFT guidelines on debt collection. It can end up with the costs of bankruptcy exceeding the total cost of the debts. That would be crazy!!

 

I am sure you are doing your best with this and I hope you will help with the reconstituted agreement problem as it might be the key to fighting a bankruptcy petition being granted.With respect you seem to know less about the bankruptcy topic that me and I am unsure about the accuracy of lots of the detail. It would really help if someone with solid knowledge about bankruptcy would contribute.

Edited September 10, 2011 by dasby

[ukaviator]

Hi

 

A Statutory Demand is a formal process under the Insolvency Act 1986 for the payment or other satisfaction of a debt that is owed by a debtor to a creditor. The Statutory Demand provide the debtor with a limited amount of time (18 days) to either pay or satisfy the debt or have it set aside by the court. 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.

 

You need to use certain forms for a statutory demand and send it to the debtor in a particular way. For an individual or sole trader use one of these three statutory demand forms:

• form 6.1 – for a specific amount payable now
  
• form 6.2 – for a specific amount payable now following a judgment or a court order
  
• form 6.3 – debts payable in the future
  

You can download the forms required here:

 

http://www.bis.gov.uk/insolvency/about-us/forms/england-and-wales

 

You have to apply to the court to set aside a statutory demand, usually within 18 days of receiving it or it being advertised in a newspaper. If you are abroad, the time limit is 22 days.

 

Step one: complete form 6.4 (application to set aside a statutory demand) and form 6.5 (set aside statement of truth). A statement of truth confirms that your application is true and correct.

 

Step two: the forms need to be filed (presented) at a court. Your solicitor or local county court can tell you which one to use.

 

Step three: the court will consider your application and either dismiss it immediately or fix a date for hearing your case. If accepted, the time detailed in the demand to satisfy the debt will be suspended.

 

Step four: at the hearing the court can agree to set aside the statutory demand or dismiss your case. If dismissed, your creditor can apply to the court to make you bankrupt and the time detailed in the demand for you to satisfy the debt will restart.

[Desperate Daniella]

Obviously dasby may have been on holiday? But if she wasn't, what can she do about setting aside the SD if she is technically out of time?

[dasby]

Obviously dasby may have been on holiday? But if she wasn't, what can she do about setting aside the SD if she is technically out of time?

bump

[BRIGADIER2JCS]

Had a little search around can't find

much as all my books are in the office,

but it looks like there has to be an application

to a judge for leave to set aside and a another

hearing.

[42man]

I believe you can apply for an 'out of time' demand which at the last time of applying was about £30, I think you should ring the court, they should tell you.....how was the stat demand delivered to you ?

[Desperate Daniella]

dasby,

 

I'm so sorry, I haven't been able to get online for over a week, and could not do your letter points last Sunday. What has happened? (I can do the letter points later if still needed.)

 

DD

[dasby]

dasby,

I'm so sorry, I haven't been able to get online for over a week, and could not do your letter points last Sunday. What has happened? (I can do the letter points later if still needed.)

DD

Haven't had anything more from Cabot but assume they will issue a bankruptcy petition eventually. It looks like it will help in court to make them prove they have the original "full page" Cap One agreement. So far they have only sent me a copy of the signature front with five pages of T&C's. Can you help with the letter please?

[dasby]

I believe you can apply for an 'out of time' demand which at the last time of applying was about £30, I think you should ring the court, they should tell you.....how was the stat demand delivered to you ?

Thanks, the court says I can apply for an 'out of time' set aside as long as I give reasons. there is no fee.

The Statutory Demand was delivered by hand

 

DDaniella says my 2002 Capital One agreement is likely to be unenforceable in court. Cabot sent a reconstituted agreement in response to my CCA S78 request (a signature front page plus 5 pages t&c's) which satifies the requirements for that type of request but is not the original agreement. Most forum opinions saythe original must be produced before the court to settle any question of enforceability.

 

As I already said I do not dispute the £4k+ debt minus about £100 charges and will repay it when my circumstances get better. My worry is that I need to try to stop the bankruptcy happening because the cost is likely to exceed the size of the debt. I am confused about the ground/s for applying for the set aside which the Insolveny website says are these:

 

"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."

 

Please can you help.

[BRIGADIER2JCS]

Hi dasby,

I your opinion which of those criteria

do YOU think applies to you.??

From what you have said so far the

only possible item is the potentially

unenforceable agreement, and maybe

a counterclaim for the small amount of

charges.

[Happyhippy1959]

Yep go with that one Brig.... Also it will bring them out of the Shadows so to speak, either they have it or they don't. Also, if they don't Dashby, your in a great position A: to set a side and mainly after it is set a side to Do what Boo does say, offer a full and final settlement and reduce if they say NO>

[dasby]

Hi dasby,

I your opinion which of those criteria

do YOU think applies to you.??

From what you have said so far the

only possible item is the potentially

unenforceable agreement, and maybe

a counterclaim for the small amount of

charges.

I think three grounds for a set aside might apply:

 

"The amount stated on the statutory demand is disputed."

Because there is about £100 max in disputed late payment fees, although I am worried that a judge might regard this as insignificant as the total debt is over £4k

 

"The demand was issued in error."

because Cabot bought the account and then issued the Statutory demand without first checking whether Cap One had posession of the original agreement in order to prove enforceability in court. This point seems different to proving the debt exists.

 

"The creditor failed to comply with the rules and prejudiced the debtor in the process."

By failing to check if there was an enforceable agreement before isuing the SD.

 

The last two seem much the same to me and all three would seem to need some technical stuff to make them suitable to present to a judge.

 

Also I need some advice of what to write to Cabot challenging them to produce a valid original enforceable agreement for use in court.

Edited September 22, 2011 by dasby

[42man]

Or an abuse of the process....

 

£100 dispute would not be enough to set aside....

 

Cabot don't need an agreement unless you make the CCA request or get the judge to make them comply with an order to supply default notice, termination notice, statements for the duration of the agreement, possibly missold PPI...I think you should also look at the Phoenix vs Kotecha case too

[BRIGADIER2JCS]

Sounds good dasby, I would as 42man to

take a look if I were you.

Brig.

[dasby]

Or an abuse of the process....

 

£100 dispute would not be enough to set aside....

 

Cabot don't need an agreement unless you make the CCA request or get the judge to make them comply with an order to supply default notice, termination notice, statements for the duration of the agreement, possibly missold PPI...I think you should also look at the Phoenix vs Kotecha case too

I did a CCA request. Cabot sent a copy of the front signature page which says it is a "Full Page Agreement". They did not send a copy of the reverse but sent 5 pages of T&C's.

They also sent the latest t&c's and all of the statements.

There is no misold PPI shown and Cap One sent a DN and TN before they sold the account.

 

Thanks for the Phoenix vs Kotecha reference. The debtor won the appeal because the judge accepted that the interest rates shown in the creditors CCA response were different to those in a leaflet they were offered when they applied for the account.

In my case I do not have that sort of evidence, only that it is supposed to be a "full page agreement" but they sent six pages. Is that sufficient grounds to claim they have not complied with my CCA request?

 

should I post up what they sent me?

[dasby]

dasby,

 

I'm so sorry, I haven't been able to get online for over a week, and could not do your letter points last Sunday. What has happened? (I can do the letter points later if still needed.)

DD

Hi DD

can you help with your letter suggestions re the CCA please.

[dasby]

UPDATE:

 

They refused to continue to accept my token payments or a full and final settlement offer from a third party

"in view of the equity you appear to hold in the family home".

 

They threatened to proceed with bankruptcy proceedings unless I settled in full within 28 days or made "adequate" repayment proposals.

 

I made a formal complaint that they had contravened Section 3 of the OFT Guidelines on Debt Collection (Unfair or Improper Business Practices)

3.7b physical or psychological harassment "pressurising debtors to raise funds by selling their property or by taking on further borrowing"

 

3.7i "pressurising debtors to pay more than they can reasonably afford without experiencing undue difficulty or to pay within an unreasonably short period.

 

For example, by using a threat of enforcement action through the courts

– including but not limited to applications for charging orders and orders for sale

– to pressure debtors in financial difficulties to pay more than they can reasonably afford.”

 

Note 32 states: “For example, pressuring a debtor to make unreasonably large repayments or to pay off his debts in full in a single (or very few) repayment(s),

when to do so would have an adverse impact on the debtor's financial circumstances.”

 

Note 33 states: “The OFT would regard 'without undue difficulty' in this context as meaning the debtor being able to make repayments

while also meeting other debt repayments and other normal / reasonable outgoings and without having to borrow further to meet these repayments.”

 

Section 3.7n states: “Making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts.”

 

They took four months to answer my complaint,

saying that they believed issuing of the statutory demand was justified

but after further consideration they would be willing to settle the matter by accepting 10% more than the third party had offered.

 

The debt was settled F&F at 40% thanks to the third party who is happy to wait until I can repay them.