Connaught/1st Credit Statutory Demand - WON *** DEMAND WITHDRAWN ***

[mevsthem]

Hi, Been a while since I have heard anything regarding my Halifax CC, but today I have received A Statutary Demand under section 268(1)(a) from Connaught collections. I have just phoned them and told them the account has been in serious dispute with the OC for the last 2 1/2 years and I will be applying to have it set aside. They have told me to confirm this to them in writing.

This is for a credit card with the halifax that I have only ever received an application form for. Also I did not have enough time to remedy the default notice before the termination notice arrived. I have a folder full of letters from various Dca's and creditors and I have also kept the default notice and termination notice. I am a bit lost as to what to do now as I thought it was just another threat-o-gram but it seems not.

Do I not tell them about termination/default notice, dont want to show them my cards so to speak or do I let them know ?

Can anyone advise as to what to do next as I havent got a clue

My original thread is here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?202041-Mevsthem-vs-Halifax-cca-advice

 

Thanks in advance

[AndyOrch]

Hi Mev

 

All you need to know :- Statutory Demands and Service By Post

 

Regards

 

Andy

[mevsthem]

Thank you Andy Ill take a good look at it, not been down this route before

[mevsthem]

Hi, Had a good read of the above post. I have a few questions if anyone could possibly answer.

1. I have not signed for the parcel myself, my partner has. Is this beneficial ?

2. Think I may have dropped a boo boo by phoning them, ie proving I have received

3. Should I send them a letter stating that account is still in dispute with O.C.

4. Should I tell them about the invalid default notice ?

Thanks again, but struggling to get my head round the situation

 

I also did receive notice of assignment, but thought as account in dispute this what not allowed. Never replied or acknowledged it

[AndyOrch]

Mevsthem

 

Pm 42man hes your man for SD,s. State that I have advised you seek is assistance.

 

Regards

 

Andy

 

PS thanks for the rep:wink:

Edited February 2, 2012 by Andyorch

[mevsthem]

Thanks for that Andy, will try

[42man]

You seem to have a bona fide dispute (do you still have all the prvious paperwork ?).....the service would seem to have been effected too. You can bring up the default notice but it shouldn't be your main defence, the fact they have not prvided an agreement (despite your request), was there any PPI on the card (if you know of course) ? do you still have any of the statements ?

 

You should continue with the set aside of the demand as Connaught are usually serious about the threat of making you bankrupt....do spend some time reading around these forums. Any chance that the alleged debt may be statute barred ?

 

You should find some more useful stuff here - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

 

You'll need to fill out forms 6.4 (set aside) and 6.5 (witness statement) plus you will need to refer to any previous correspondence/letters with the previous creditor too...but don't submit any defence before somebody has had a look at it....

[mevsthem]

Hi, I have all previous correspondance including envelopes. I have copies of application form sent various times by OC. I have default notice and termination notice in envelopes which never gave me the 28 days to rectify. Acc is not sb and I dont think there is any ppi also. This acc has been in dispute and passed around since Sept09. I have kept absolutely everything. Im just lost as to what to do next. I phoned them and told them I will be applying for set aside but they asked me for reasons in writing. Do I have to relpy to them or file forms 6.4 & 6.5 with the court ?

thanks again for your valuable time

[42man]

They only need to give 14 days by the way....not 28, and I would apply to the court to set aside the demand....You have 18 days from the day you received the demand to set it aside...

[mevsthem]

Sorry meant 14 days, default was dated 8th Oct and the Termination was the 21st thats without postage times

[mevsthem]

where do I find forms 6.4 & 6.5

[DonkeyB]

You said you had a dispute with the OC... I’m assuming the account has since been assigned to 1st Credit and Connaught are dealing?

[mevsthem]

Yes thats correct. The letter/parcel received today signed for by my other half contains a SD from Connaught but its only form 6.1

Sorry if im being a bit dumb

[42man]

Just have a heads up on a case called Brandon vs Amex

[42man]

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

[mevsthem]

Thanks, looks like I'm going to have to do a lot of reading, Ill download forms and start thinking of a defence

[mevsthem]

Having a quick read of Brandon vs Amex it looks as if they can get away with not giving you the 14 days notice then ? or am I wrong. I have both Dn and termination which are dated 13 days apart and this is if I took them from their printer itself. So why bother with laws if it can only be a minor technicality

excuse my ignorence

 

Correction Brandon vs Amex had 22 days before termination

[DonkeyB]

No, it’s the opposite... that was the original case, which was appealed.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1187.html

 

And here’s a thread on it:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?286311-Brandon-Case

[mevsthem]

Downloaded the forms 6.4 and 6.5 Is there any guidance anywhere regards filling them in

thanks again

[The Mould]

Good evening mevsthem

 

Relevant and important information for Cag members/persons concerning service of Statutory Demands upon them by their creditor(s);

Practice Direction—Insolvency Proceedings

Application to set aside statutory demand

The debtor may apply to the court to set aside the statutory demand within 18 days of its service upon him. The court will consider the application and will dismiss it summarily if it considers that it has no real prospect of success (r.6.5(1)); for example where the demand is based on a judgment, the court will not go behind it at this stage. In all other cases a date will be fixed for a directions hearing. As to the grounds on which the court will set aside a demand see r.6.5(4) of the Insolvency Rules 1986.

Paragraph 12 of the Practice Direction refers to the need to show a genuine triable issue. It would appear that the decision in BPR Graphic Engineers (Yorks) Ltd [2002] B.P.I.R. 544 to the effect that the test is lower than that applicable on an application for summary judgement no longer applies. The Court of Appeal has now held that there is no practical difference between a "genuine triable issue" and a "real prospect of success" for the purpose of an application to set aside a demand (Ashworth v Newnote Ltd [2007] EWCA Civ 793; [2007] B.P.I.R. 1012).

A petition (other than an expedited petition) may not be presented until the application is dealt with.

The Insolvency Rules 1986

PART 6

BANKRUPTCY

THE STATUTORY DEMAND

6.1. Form and content of statutory demand

(1) A statutory demand under section 268 [>>Text] must be dated, and be signed either by the creditor himself or by a person stating himself to be authorised to make the demand on the creditor's behalf.

(2) The statutory demand must specify whether it is made under section 268(1) [>>Text] (debt payable immediately) or section 268(2) [>>Text] (debt not so payable).

(3) The demand must state the amount of the debt, and the consideration for it (or, if there is no consideration, the way in which it arises) and—

(a) if made under section 268(1) [>>Text] and founded on a judgment or order of a court, it must give details of the judgment or order, and

(b) if made under section 268(2) [>>Text], it must state the grounds on which it is alleged that the debtor appears to have no reasonable prospect of paying the debt.

(4) If the amount claimed in the demand includes—

(a) any charge by way of interest not previously notified to the debtor as a liability of his, or

(b) any other charge accruing from time to time,the amount or rate of the charge must be separately identified, and the grounds on which payment of it is claimed must be stated.

In either case the amount claimed must be limited to that which has accrued due at the date of the demand.

(5) If the creditor holds any security in respect of the debt, the full amount of the debt shall be specified, but—

(a) there shall in the demand be specified the nature of the security, and the value which the creditor puts upon it as at the date of the demand, and

(b) the amount of which payment is claimed by the demand shall be the full amount of the debt, less the amount specified as the value of the security.

6.2. Information to be given in statutory demand

(1) The statutory demand must include an explanation to the debtor of the following matters—

(a) the purpose of the demand, and the fact that, if the debtor does not comply with the demand, bankruptcy proceedings may be commenced against him;

(b) the time within which the demand must be complied with, if that consequence is to be avoided;

© the methods of compliance which are open to the debtor; and

(d) his right to apply to the court for the statutory demand to be set aside.

(2) The demand must specify one or more named individuals with whom the debtor may, if he wishes, enter into communication with a view to securing or compounding for the debt to the satisfaction of the creditor or (as the case may be) establishing to the creditor's satisfaction that there is a reasonable prospect that the debt will be paid when it falls due.

In the case of any individual so named in the demand, his address and telephone number (if any) must be given.

6.3. Requirements as to service

(1) Rule 6.11 in Chapter 2 below has effect as regards service of the statutory demand, and proof of that service by a certificate of service to be filed with a bankruptcy petition.

(2) The creditor is, by virtue of the Rules, under an obligation to do all that is reasonable for the purpose of bringing the statutory demand to the debtor's attention and, if practicable in the particular circumstances, to cause personal service of the demand to be effected.

(3) Where the statutory demand is for payment of a sum due under a judgment or order of any court and the creditor knows, or believes with reasonable cause—

(a) that the debtor has absconded or is keeping out of the way with a view to avoiding service, and

(b) there is no real prospect of the sum due being recovered by execution or other process,the creditor may advertise the demand in such manner as the creditor thinks just: and the time limited for compliance with the demand runs from the date of the advertisement's appearance or (as the case may be) its first appearance.

Note

Paragraph (3) amended (subject to transitional provisions) by SI 2009/642 r.33, with effect from April 6, 2009. Para.(1) amended (subject to transitional provisions) by the Insolvency (Amendment) Rules 2010 (SI 2010/686) Sch.1 paras 1, 303 with effect from April 6, 2010.

6.4. Application to set aside statutory demand

(1) The debtor may, within the period allowed by this Rule, apply to the appropriate court for an order setting the statutory demand aside.

That period is 18 days from the date of the service on him of the statutory demand or, where the demand is advertised pursuant to Rule 6.3, from the date of the advertisement's appearance or (as the case may be) its first appearance.

(2) Subject to paragraph (2A), an application to the court under this Rule must be made to the court to which the debtor would in accordance with Rule 6.40A present the petition for the debtor's bankruptcy.

(2A) A debtor may make an application to the court to which in accordance with Rule 6.9A(1) a petition based on the debt in the statutory demand must be presented where that court is not the court to which the debtor would in accordance with Rule 6.40A present the petition for the debtor's bankruptcy if—

(a) the creditor issuing the statutory demand is a Minister of the Crown or a Government Department;

(b) the debt in respect of which the statutory demand is made, or a part of it equal to or exceeding the bankruptcy level (within the meaning of section 267 [>>Text]), is the subject of a judgment or order of any court; and

© the statutory demand—

(i) specifies the date of the judgment or order and the court in which it was obtained; and

(ii) indicates the creditor's intention to present a bankruptcy petition against the debtor in the High Court or the Central London County Court.

(3) As from (inclusive) the date on which the application is filed in court, the time limited for compliance with the statutory demand ceases to run, subject to any order of the court under Rule 6.5(6).

(4) The debtor's application shall be supported by a witness statement—

(a) specifying the date on which the statutory demand came into his hands, and

(b) stating the grounds on which he claims that it should be set aside.

(5) The witness statement must have attached to it a copy of the statutory demand.

Note

Paragraph (1) amended (subject to transitional provisions) by SI 2009/642 r.34, with effect from April 6, 2009. Amended (subject to transitional provisions) by the Insolvency (Amendment) Rules 2010 (SI 2010/686) Sch.1 para.304 with effect from April 6, 2010.

Para.2A amended (subject to transitional provisions) by the Insolvency (Amendment) Rules 2011 (SI 2011/785), rule 5 with effect from April 6, 2011.

6.5. Hearing of application to set aside

(1) On receipt of an application under Rule 6.4, the court may, if satisfied that no sufficient cause is shown for it, dismiss it without giving notice to the creditor. As from (inclusive) the date on which the application is dismissed, the time limited for compliance with the statutory demand runs again.

(2) If the application is not dismissed under paragraph (1), the court shall fix a venue for it to be heard, and shall give at least 5 business days' notice of it to—

(a) the debtor or, if the debtor's application was made by a solicitor acting for him, to the solicitor,

(b) the creditor, and

© whoever is named in the statutory demand as the person with whom the debtor may enter into communication with reference to the demand (or, if more than one person is so named, the first of them).

(3) On the hearing of the application, the court shall consider the evidence then available to it, and may either summarily determine the application or adjourn it, giving such directions as it thinks appropriate.

(4) The court may grant the application if—

(a) the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt or debts specified in the statutory demand; or

(b) the debt is disputed on grounds which appear to the court to be substantial; or

© it appears that the creditor holds some security in respect of the debt claimed by the demand, and either Rule 6.1(5) is not complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.

(5) Where the creditor holds some security in respect of his debt, and Rule 6.1(5) is complied with in respect of it but the court is satisfied that the security is under-valued in the statutory demand, the creditor may be required to amend the demand accordingly (but without prejudice to his right to present a bankruptcy petition by reference to the original demand).

(6) If the court dismisses the application, it shall make an order authorising the creditor to present a bankruptcy petition either as soon as reasonably practicable, or on or after a date specified in the order.

A copy of the order shall be sent by the court forthwith to the creditor.

Note

Amended by the Insolvency (Amendment) Rules 2009 (SI 2009/642) r.5; and (subject to transitional provisions) by the Insolvency (Amendment) Rules 2010 (SI 2010/686) Sch.1 para.305 with effect from April 6, 2010.

BANKRUPTCY PETITION (CREDITOR'S)

6.6. Preliminary

The Rules in this Chapter relate to a creditor's petition, and the making of a bankruptcy order thereon; and in those Rules "the debt" means, except where the context otherwise requires, the debt (or debts) in respect of which the petition is presented.

Those Rules also apply to a petition under section 264(1)© [>>Text] (supervisor of, or person bound by, voluntary arrangement), with any necessary modifications.

6.7. Identification of debtor

(1) The petition shall state the following matters with respect to the debtor, so far as they are within the petitioner's knowledge—

(a) his name, place of residence and occupation (if any);

(b) the name or names in which he carries on business, if other than his true name, and whether, in the case of any business of a specified nature, he carries it on alone or with others;

© the nature of his business, and the address or addresses at which he carries it on;

(d) any name or names, other than his true name, in which he has carried on business at or after the time when the debt was incurred, and whether he has done so alone or with others;

(e) any address or addresses at which he has resided or carried on business at or after that time, and the nature of that business.

(f) whether the debtor has his centre of main interests or an establishment in another member State.

(2) The particulars of the debtor given under this Rule determine the full title of the proceedings.

(3) If to the petitioner's personal knowledge the debtor has used any name other than the one specified under paragraph (1)(a), that fact shall be stated in the petition.

Note

Subsection (1)(f) added by the Insolvency (Amendment) Rules 2002/1307 r.8(1).

6.8. Identification of debt

(1) There shall be stated in the petition, with reference to every debt in respect of which it is presented—

(a) the amount of the debt, the consideration for it (or, if there is no consideration, the way in which it arises) and the fact that it is owed to the petitioner;

(b) when the debt was incurred or became due;

© if the amount of the debt includes—

(i) any charge by way of interest not previously notified to the debtor as a liability of his, or

(ii) any other charge accruing from time to time,the amount or rate of the charge (separately identified) and the grounds on which it is claimed to form part of the debt, provided that such amount or rate must, in the case of a petition based on a statutory demand, be limited to that claimed in that demand;

(d) either—

(i) that the debt is for a liquidated sum payable immediately, and the debtor appears to be unable to pay it, or

(ii) that the debt is for a liquidated sum payable at some certain, future time (that time to be specified), and the debtor appears to have no reasonable prospect of being able to pay it,and, in either case (subject to section 269 [>>Text]) that the debt is unsecured.

(2) Where the debt is one for which, under section 268 [>>Text], a statutory demand must have been served on the debtor—

(a) there shall be specified the date and manner of service of the statutory demand, and

(b) it shall be stated that, to the best of the creditor's knowledge and belief—

(i) the demand has been neither complied with nor set aside in accordance with the Rules, and

(ii) no application to set it aside is outstanding.

(3) If the case is within section 268(1)(b) [>>Text] (debt arising under judgment or order of court; execution returned unsatisfied), the court from which the execution or other process issued shall be specified, and particulars shall be given relating to the return.

Note

Subsection (1) amendment added by the Insolvency (Amendment) Rules 1987/1919 Sch.1(1)(7) para.91.

6.9. Court in which petition to be presented

(1) If the debtor is resident in England and Wales, the petition must, in the following cases, be presented to the High Court—

(a) if the petition is presented by a Minister of the Crown or a Government Department, and either—

(i) in any statutory demand on which the petition is based the creditor has indicated the intention to present a bankruptcy petition to that Court, or

(ii) the petition is presented under section 268(1)(b);

(b) if, for the greater part of the 6 months immediately preceding the presentation of the petition, the debtor—

(i) has carried on a business in the London insolvency district; or

(ii) has not carried on a business in England and Wales but has resided in the London insolvency district; or

© if the petitioner is unable to ascertain the debtor's residence or place of business within England and Wales.

(2) Where the debtor is resident in England and Wales and paragraph (1) does not apply, the petition must be presented to the debtor's own county court if the debtor—

(a) has carried on a business in England and Wales other than in the London insolvency district, or

(b) has not carried on a business in England and Wales and has resided outside the London insolvency district.

(3) In this Rule the debtor's own county court is—

(a) where the debtor has carried on a business within the 6 months immediately preceding the presentation of the petition, the county court for the insolvency district where for the greater part of that period of 6 months—

(i) the debtor carried on the business, or

(ii) the principal place of business was located, if the business was carried on in more than one insolvency district; or

(b) where the debtor has not carried on a business in the 6 months immediately preceding the presentation of the petition, the county court for the insolvency district where the debtor resided for the greater part of that 6 month period.

(4) If the debtor is not resident in England and Wales but was resident or carried on business in England and Wales within the 6 months immediately preceding the presentation of the petition, the petition—

(a) must be presented to the High Court if the debtor—

(i) carried on a business in the London insolvency district for a longer period in those 6 months than in any other insolvency district, or

(ii) did not carry on a business in England and Wales but resided in the London insolvency district for a longer period in those 6 months than in any other insolvency district; and

(b) in any other case, may be presented either to the debtor's own county court or to the High Court.

(5) The petition must be presented to the High Court if the debtor is not resident in England and Wales and—

(a) has not resided or carried on business in England and Wales within the 6 months immediately preceding the presentation of the petition, or

(b) the petitioner is unable to ascertain the debtor's residence or place of business.

(6) Notwithstanding any other provision of this Rule, where there is in force for the debtor a voluntary arrangement under Part 8 of the Act, the petition must be presented to the court to which the nominee's report under section 256 was submitted.

(7) The petition must contain sufficient information to establish that it is presented in the appropriate court.

Note

Substituted for original r.6.9 (subject to transitional provisions) by the Insolvency (Amendment) Rules 2010 (SI 2010/686) Sch.1 para.306 with effect from April 6, 2010.

6.9A Court in which petition to be presented

(1) Where the proceedings are allocated to the London insolvency district under Rule 7.10ZA(a)(i) to (iv) or (b), the creditor must present the petition to—

(a) the High Court where the petition debt is £50,000 or more;

(b) the Central London County Court where the petition debt is less than £50,000;

(2) Where the proceedings are allocated to the London insolvency district under Rule 7.10ZA(a)(v), © or (d), the creditor must present the petition to the High Court.

(3) Where the debtor is resident in England and Wales and the proceedings are not allocated to the London insolvency district, the creditor must present the petition to the debtor's own county court.

(4) In this Rule the debtor's own county court is—

(a) where the debtor has carried on business in England and Wales within the 6 months immediately preceding the presentation of the petition, the county court for the insolvency district where for the longest period during those 6 months—

(i) the debtor carried on business, or

(ii) the principal place of business was located, if business was carried on in more than one insolvency district; or

(b) where the debtor has not carried on business in England and Wales within the 6 months immediately preceding the presentation of the petition, the county court for the insolvency district where the debtor resided for the longest period during those 6 months.

(5) If the debtor is not resident in England and Wales but was resident or carried on business in England and Wales within the 6 months immediately preceding the presentation of the petition and the proceedings are not allocated to the London insolvency district, the petition may be presented either to the debtor's own county court or to the High Court.

(6) Notwithstanding any other provision of this Rule except paragraph (2), where there is in force for the debtor a voluntary arrangement under Part 8 of the Act, the petition must be presented to the court to which—

(a) the nominee's report under section 256 was submitted, or

(b) where a nominee has made a report under section 256A(3), an application has been made.

(7) The petition must contain sufficient information to establish that it is presented in the appropriate court.

Note

Rule 6.9A substituted (subject to transitional provisions) by the Insolvency (Amendment) Rules 2011 (SI 2011/785), rule 6 with effect from April 6, 2011.

6.10. Procedure for presentation and filing

(1) The petition, verified by a statement of truth in accordance with Rule 6.12(1) below, shall be filed in court.

(2) No petition shall be filed unless there is produced on presentation of the petition a receipt for the deposit payable or paragraph (2A) applies.

(2A) This paragraph applies in any case where the Secretary of State has given written notice to the court that the petitioner has made suitable alternative arrangements for the payment of the deposit to the official receiver and such notice has not been revoked in relation to the petitioner in accordance with paragraph (2B).

(2B) A notice of the kind referred to in paragraph (2A) may be revoked in relation to the petitioner in whose favour it is given by a further notice in writing to the court stating that the earlier notice is revoked in relation to the petitioner.

(3) The following copies of the petition shall also be delivered to the court with the petition—

(a) one for service on the debtor and,

© if there is in force for the debtor a voluntary arrangement under Part VIII [>>Text] of the Act, and the petitioner is not the supervisor of the arrangement, one copy for him.Each of these copies shall have applied to it the seal of the court, and shall be issued to the petitioner.

(4) The date and time of filing the petition shall be endorsed on the petition and on any copy issued under paragraph (3).

(5) The court shall fix a venue for hearing the petition, and this also shall be endorsed on the petition and on any copy so issued.

(6) Where a petition contains a request for the appointment of a person as trustee in accordance with section 297(5) [>>Text] (appointment of former supervisor as trustee) the person whose appointment is sought shall, not less than 2 business days before the day appointed for hearing the petition, file in court a report including particulars of-

(a) a date on which he gave written notification to creditors bound by the arrangement of the intention to seek his appointment as trustee, such date to be at least 7 business days before the day on which the report under this paragraph is filed, and

(b) details of any response from creditors to that notice, including any objections to his appointment.

Note

Rule 6.10(2)–(2B) substituted for r.6.10(2) by the Insolvency (Amendment) Rules 2004/584 r.26.

Amended (subject to transitional provisions) by the Insolvency (Amendment) Rules 2010 (SI 2010/686) Sch.1 para.307 with effect from April 6, 2010.

6.11. Proof of service of statutory demand

(1) Where under section 268 [>>Text] the petition must have been preceded by a statutory demand, there must be filed in court, with the petition, a certificate or certificates proving service of the demand.

(2) Every certificate must be verified by a statement of truth and have attached to it a copy of the demand as served.

(3) Subject to the next paragraph, if the demand has been served personally on the debtor, the certificate must be authenticated by the person who effected that service.

(4) If service of the demand (however effected) has been acknowledged in writing either by the debtor himself, or by some person stating himself in the acknowledgement to be authorised to accept service on the debtor's behalf, the certificate must be authenticated either by the creditor or by a person acting on his behalf, and the acknowledgement of service must be exhibited to the certificate.

(5) If neither paragraph (3) nor paragraph (4) applies, the certificate or certificates must be authenticated by a person or persons having direct personal knowledge of the means adopted for serving the statutory demand, and must—

(a) give particulars of the steps which have been taken with a view to serving the demand personally, and

(b) state the means whereby (those steps having been ineffective) it was sought to bring the demand to the debtor's attention, and

© specify a date by which, to the best of the knowledge, information and belief of the person authenticating the certificate, the demand will have come to the debtor's attention.

(6) The steps of which particulars are given for the purposes of paragraph (5)(a) must be such as would have sufficed to justify an order for substituted service of a petition.

(7) If the certificate specifies a date for the purposes of compliance with paragraph (5)©, then unless the court otherwise orders, that date is deemed for the purposes of the Rules to have been the date on which the statutory demand was served on the debtor.

(8) Where the creditor has taken advantage of Rule 6.3(3) (advertisement), the certificate must be authenticated either by the creditor himself or by a person having direct personal knowledge of the circumstances; and there must be specified in the certificate —

(a) the means of the creditor's knowledge or (as the case may be) belief required for the purposes of that Rule, and

(b) the method by which, and the date or dates on which the statutory demand was advertised under that rule; and there shall be exhibited to the certificate either a copy of any advertisement of the statutory demand or, where this is not reasonably practicable, the certificate must contain or attach a description of the contents of any such advertisement of the statutory demand.and there shall be exhibited to the affidavit either a copy of any advertisement of the statutory demand or, where this is not reasonably practicable, the affidavit shall contain or exhibit a description of the contents of any such advertisement of the statutory demand.

(9) The court may decline to file the petition if not satisfied that the creditor has discharged the obligation imposed on him by Rule 6.3(2).

Note

Paragraph (5)(a) amended by the Insolvency (Amendment) Rules 1987/1919 Sch.1(1)(7) para.94(3)©. Paragraph (8) amended (subject to transitional provisions) by SI 2009/642 r.35, with effect from April 6, 2009. Amended (subject to transitional provisions) by the Insolvency (Amendment) Rules 2010 (SI 2010/686) Sch.1 para.308 with effect from April 6, 2010.

6.12. Verification of petition

(1) The petition shall be verified by a statement of truth.

(2) If the petition is in respect of debts to different creditors, the debts to each creditor must be separately verified.

(3A) A statement of truth which is not contained in or endorsed upon the petition which it verifies must be sufficient to identify the petition and must specify—

(a) the name of the debtor,

(b) the name of the petitioner, and

© the court in which the petition is to be presented.

(4) The statement of truth must be authenticated—

(a) by the petitioner (or if there are two or more petitioners, any one of them), or

(b) by some person such as a director, company secretary or similar company officer, or a solicitor, who has been concerned in the matters giving rise to the presentation of the petition, or

© by some responsible person who is duly authorised to authenticate the statement of truth and has the requisite knowledge of those matters.

(5) Where the person authenticating the statement of truth is not the petitioner himself, or one of the petitioners, he must in the statement of truth identify himself and state—

(a) the capacity in which, and the authority by which, he authenticates it, and

(b) the means of his knowledge of the matters verified in the statement of truth.

(6) [...]

(7) If the petition is based upon a statutory demand, and more than 4 months have elapsed between the service of the demand and the presentation of the petition, the petition must include a statement explaining the reasons for the delay.

Note

Amended (subject to transitional provisions) by the Insolvency (Amendment) Rules 2010 (SI 2010/686) Sch.1 para.309 with effect from April 6, 2010.

Kind regards

The Mould

[mevsthem]

Thanks for all the advice so far. I have been reading posts for the last 6hrs and still unsure as to how I should word my witness statment. I intend to state that I do not admit the debt because the account has been in serious dispute with the OC since June 2009 due to not complying with my cca request and should not have been passed to any other creditors whilst the account is in dispute. Also that I was issued with a default notice and termination notice that did not give me sufficient time to remedy, less than the 14 days given under section 87(1) of the consumer credit act 1974. Is this the right way to word my witness statement, Im useless at writing in law terms. If this was a county court claim I would be fine its just this SD has thrown me big time

[The Mould]

Thanks for all the advice so far. I have been reading posts for the last 6hrs and still unsure as to how I should word my witness statment. I intend to state that I do not admit the debt because the account has been in serious dispute with the OC since June 2009 due to not complying with my cca request and should not have been passed to any other creditors whilst the account is in dispute. Also that I was issued with a default notice and termination notice that did not give me sufficient time to remedy, less than the 14 days given under section 87(1) of the consumer credit act 1974. Is this the right way to word my witness statement, Im useless at writing in law terms. If this was a county court claim I would be fine its just this SD has thrown me big time

 

You should also state that the creditor holds no entitlement to enforce;

 

"It is averred that the creditor has not served a valid statutory default notice pursuant to s.87(1) of the Consumer Credit Act 1974 (as amended), therefore, he holds no entitlement granted therein to seek to enforce the agreement and it follows that he has no standing before the court in respect of the same". (as an example of legal argument)

 

Kind regards

 

The Mould

[mevsthem]

Thanks The Mould, I really appreciate your input. You really helped me out a great deal with my other cc as did andyorch that the Haliprats ceased persuing. Can I just put this statement as a LIP in other words just explain myself or do I have to write it in Law terms quoting various parts of The insolvency rules etc

thanks again

[The Mould]

Thanks The Mould, I really appreciate your input. You really helped me out a great deal with my other cc as did andyorch that the Haliprats ceased persuing. Can I just put this statement as a LIP in other words just explain myself or do I have to write it in Law terms quoting various parts of The insolvency rules etc

thanks again

 

Well, you must write down your response to the Statutory Demand (forms 6.4 and 6.5), this is your Defence, the reasons as to why the SD should be dismissed, the hearing will probably take 10 minutes, based upon your postings here, the SD should be struck out.

 

It is always a good idea to quote case law authority in your statement, the lower courts are bound by the decisions handed down by the High Court, Court of Appeal and Supreme Court.

 

Don'y worry about how you make your statement, simply write the contents in clear and concise English, don't allow yourself to feel inferior to anyone or anything, you have nothing to be embarrased about on any level in life and especially in legal matters.

 

Draft your statement and then post up here for further advice,assistance and support.

 

Kind regards

 

The Mould

[The Mould]

The account is in genuine dispute and no valid statutory default notice served, the action by the creditor fails on the unequivocal point of law, the action cannot proceed in contravention of statute - CCA 1974 (as amended) s.87(1) see; the Brandon v American Express case and Woodchester v Swain & Co in respect of the defective default notice element of your Defence to the SD.

 

Kind regards

 

The Mould