Re: Statutory Demand Set Aside Form 6.4

[mpctc]

Hers one

 

I did some work for someone for an agreed monthly sum. This went on for 6 months then he decided to reduce to amount. I didn't agree and walked away. He then called me and told me that the monies previously paid to me where in fact a loan. There is no written agreement to either confirm or disprove this. I told him to get stuffed. I received a wishy washy letter from a solicitor which, on legal advice, I ignored. Today I received a notice of intention to serve a statutory demand on me for the sum of £2,000. It is a spurious claim for which no evidence can possibly exist. The problem I have is I am in the process of applying for a US residence visa and any hint of bankruptcy can prejudice this application and I pretty much think that the timing of the statutory demand is intended to do this.

 

My question is this. If there is no evidence that this money is a loan (which it wasn't) surely the burden of proof is on the claimant. The way I see it, this doesn't need a solicitor to complete 6.4 and 6.5 Has anyone got any advice for me.

[asokn]

He will probably serve a stat demand on you, when he does immediately apply to have it set aside on the basis that there is a genuine trialable issue e.g. whether the money is actually owed or not. This may prompt the matter to end or, if you do succeed, you may find he issues a claim against you but you can only take this one step at a time.

 

As for the burden of proof, oddly if you apply to set aside the burden is technically on you as the applicant but in reality he would have to show that this is a clear enough case for bankruptcy to be appropriate.

[Michael Browne]

It's almost certainly bluff, (or he has had extremely bad legal advice). Issuing an SD does not involve a court and costs him nothing. But if the SD is not challenged/set aside, it would still be up to him to institute bankruptcy proceedings against you, and that would cost him several hundred pounds.

The likelihood of that is pretty minimal. More likely he's hoping the words statutory demand and bankruptcy will intimidate you into paying without actually having to go to court.

 

Make sure you apply to have the SD set aside.

[brokebutnotbeatn]

Out of interest, did you produce invoices against the work you had carried out? What was the work you undertook and is there any evidence that you did the work?

[mpctc]

Out of interest, did you produce invoices against the work you had carried out? What was the work you undertook and is there any evidence that you did the work?

 

 

The work was on an informal basis. There were no invoices issued nor is there any loan paperwork (because it wasn't a loan). It boils down to his word against mine.

[asokn]

So you did some work, he gave you some money and now is claiming it was a loan? How does he explain the work you did?

[mpctc]

So you did some work, he gave you some money and now is claiming it was a loan? How does he explain the work you did?

 

Spme background. I ****ed him off by not agreeing with him. I went out to the states to as an informal consultancy as an expert to implement some procedures in a ne business he was setting up there.This guy is a bully who, when people don't agree with him, turns on them. He has a track record of rewriting history to suit his own purposes. The SD is an attempt to screw up a business I have in the United States. Thing is, I have a lot of crap I can throw back at him, but I decided to take the moral high ground. Because I don't respond to his lawyer's kitchen sink letters he does things like this. I can't see how it can go anywhere, because there was no loan therefore he has no proof.

[42man]

Rest easy....as soon as the demand comes through we can assist in applying to set it aside.....It would be interesting to see the particulars of the claim/debt on the demand !!

[mpctc]

Spme background. I ****ed him off by not agreeing with him. I went out to the states to as an informal consultancy as an expert to implement some procedures in a ne business he was setting up there.This guy is a bully who, when people don't agree with him, turns on them. He has a track record of rewriting history to suit his own purposes. The SD is an attempt to screw up a business I have in the United States. Thing is, I have a lot of crap I can throw back at him, but I decided to take the moral high ground. Because I don't respond to his lawyer's kitchen sink letters he does things like this. I can't see how it can go anywhere, because there was no loan therefore he has no proof.

 

Here they are:

 

==========

 

A loan made to the debtor by the creditor at £500 per calendar month for four months. A loan was paid by Natwest Bank Account number xxxxxxxxx (Sort Code xx xx xx) which is in the name of the debtor's wif Mrs xxxxxx

 

The loan is repayable on demand at law.

 

Despite written requests that the loan be repaid and telephone messages left by the creditor's solicitorfor the debtor to date no repayment has been forthcoming.

 

Interest at 8% per annum is claimed on the loan from 31 January 2012 at the rate of 44 pence per day x 70 days = £30.80 and continuing at a rate of 44 pence per day until payment is received.

 

===========

 

I responded to this by asserting that there is NO loan and asking the idiot's solicitor to produce an executed loan agreement and any other documents pertaining to the loan

 

This is what I received in return: (my comments in CAPITALS)

 

========

 

Dear Sir,

 

Our Client - XXXXXXXXXXXX

 

We refer to your letter of the 17 April.

 

We note that you assert that the loan was not made to you. You do not give any particulars in support of the alleged defence. Please provide full particulars of the facts and matters relied on so that we can properly consider those with our client. (WTF??? THERE IS NO LOAN, ERGO NO PARTICULARS)

 

We not that you ask for disclosure of documents. Please identify with full particulars any documents you say exist. (??? THAT'S THE POINT. I AM SAYING THERE ARE NO DOCUMENTS THAT EXIST BECAUSE THERE IS NO LOAN)

 

Please provide particulars of any legal authority in support of specific disclosure at this stage.

 

================

 

The solicitor obviously thinks I am an idiot.

[asokn]

Interesting. You said in your original post that you were being paid for 6 months but the particulars above say it was a 4 month loan? Any thoughts?

 

I still don't understand how he will show a loan existed if you produced work for him and he started paying you shortly thereafter? I can't see, on the basis of what you've said, any reasonable person concluding that the money was a loan rather than payment and you were happy to work for free! Clearly you needed money so why would you work for free whilst taking out a loan with the person who was benefiting from your work?

 

Very odd.

[42man]

Can we presume the stat demand has now come through ? How was it 'served' ? or was it just posted ? or is this a county court claim ?

[asokn]

By the way, what did you say in your letter of 17th April?

[mpctc]

Interesting. You said in your original post that you were being paid for 6 months but the particulars above say it was a 4 month loan? Any thoughts?

 

I still don't understand how he will show a loan existed if you produced work for him and he started paying you shortly thereafter? I can't see, on the basis of what you've said, any reasonable person concluding that the money was a loan rather than payment and you were happy to work for free! Clearly you needed money so why would you work for free whilst taking out a loan with the person who was benefiting from your work?

 

Very odd.

 

I originally went for one month. At the end that month I was asked to continue. I told him that that wasn't possible on the money he was paying as I had other commitments. He said that he would increase by £500 per month. That means he paid me £500 per month more for October, November and December. When he paid me at the end of January, it was £500 short. I asked why and he told me the business couldn't support it. I said goodbye. Apparently he has dome similar things before.

[mpctc]

Interesting. You said in your original post that you were being paid for 6 months but the particulars above say it was a 4 month loan? Any thoughts?

 

I still don't understand how he will show a loan existed if you produced work for him and he started paying you shortly thereafter? I can't see, on the basis of what you've said, any reasonable person concluding that the money was a loan rather than payment and you were happy to work for free! Clearly you needed money so why would you work for free whilst taking out a loan with the person who was benefiting from your work?

 

Very odd.

 

I originally went for one month. At the end that month I was asked to continue. I told him that that wasn't possible on the money he was paying as I had other commitments. He said that he would increase by £500 per month. That means he paid me £500 per month more for October, November and December. When he paid me at the end of January, it was £500 short. I asked why and he told me the business couldn't support it. I said goodbye. Apparently he has dome similar things before.

[brokebutnotbeatn]

I don't think the lawyers are playing games just reponding as to their clients brief. He can show he paid money to you (your wife). I don't understand why you haven't responded to say the money paid was for services rendered for consultancy as per a verbal agreement (unless that was in your letter of 17th April?). I assume you didn't invoice him for the work as it was an informal agreement. It would be useful to outline what work was carried out.

[brokebutnotbeatn]

Were the payments made by him personally or through the company? How was he able to arrange the payments without an invoice to off set the payments against? Also, I assume you have evidence of your stay in the US. Why would you be there but to do as you say, provide informal but paid for consultancy services...where was your wife during this time? Are you invoicing him for your costs? Did you ahve any other reason to be in the USA at that time?

[mpctc]

Can we presume the stat demand has now come through ? How was it 'served' ? or was it just posted ? or is this a county court claim ?

 

Yes. It came though and was served by hand from the solicitor Form 6.1

[mpctc]

By the way, what did you say in your letter of 17th April?

 

I denied there was any loan and I asked them to produce an executed loan agreement or any other evidence that was a loan.

[brokebutnotbeatn]

Can you post your letter here or reproduce it minus personal details.

[mpctc]

Were the payments made by him personally or through the company? How was he able to arrange the payments without an invoice to off set the payments against? Also, I assume you have evidence of your stay in the US. Why would you be there but to do as you say, provide informal but paid for consultancy services...where was your wife during this time? Are you invoicing him for your costs? Did you ahve any other reason to be in the USA at that time?

 

Payments were made in two ways. In September £1000 was paid to my wife into a UK bank account from his personal account and the USD equivalent of £1000 was paid to me in the US in cash. In October, November and December £1500 was paid to my wife from his personal bank account and the USD equivalent of £1000 was paid to me in the US in cash. In January he paid £1500 to my wife's account and the USD equivalent of £500 (the reason I left) There were NEVER any amounts of £500 paid.

 

As for offsetting... This is a guy who does not track anything the way it should be tracked. I was never asked for an invoice

[mpctc]

Can you post your letter here or reproduce it minus personal details.

 

Dear Sir,

 

I have received the Statutory Demand issued by you regarding an alleged loan made to me by your client Mr Maurice Barker. I believe this to be a malicious allegation by your client and I deny that any such loan was made to me.

 

To enable me to file a defence I require specific information regarding the alleged loan to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished by 24th of April 2012, which gives you 7 days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of an executed loan agreement and any terms and conditions that applied to the alleged loan at the time the loan from your client was made.

2. All records you hold on me relevant to this case, including but not limited to:

a. A genuine copy of any loan agreement, or proof that you have a legal right to this money.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations with me in relation to the alleged loan by you, or by your client.

c. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

d. A list of third party persons or agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

e. Any other documents you seek to rely on in court.

 

I will require this information within the next 7 days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence on this serious matter.

[brokebutnotbeatn]

What evidence do you have that you conducted any work for him other than your word? Is there any other reason that you were, or could have been, in the USA. how have you accounted for these payment from a tax perspective? have you advised his lawyers that the monies were for services rendered - or have you just denied a loan.

Rather than respond defensively (which is ahrd I know), try and keep the emotion out of it. stand back and look at the facts objectively and think if you ahve anything (as his lawyers asked) to substantiate your claims (over his). Whilst the burden of proof is undoubtedly on him to prove it was a loan it is important you try and think what you have to counter this. his proof is that monies were paid, to your wife, on a number of consecutive months. he can prove payments. ergo his claim. You will need to get this SD set aside. Courts do not judge on emotion but on what can be shown to be fact.

[42man]

You'll need forms 6.4 (set aside) and form (6.5) witness statement. You need to hand these in at the closest court to you that handle bankruptcies/insolvencies (not all county courts do - but you can ring them to check)

 

On the form I would be putting something along the lines of. (you could add in the time you were working and detail that as well)

 

The alleged debt is totally disputed.

 

The alleged creditor is issuing a frivolous, unlawful and trite demand despite having knowledge of the dispute.

 

The defendant totally denies there being any agreement verbal or non verbal for the 'loan' of any monies.

 

The defendant successfully carried out work for the claimant and was remunierated for this. At no stage was the defendant working for 'free' for which the claimant was fully aware of.

 

The claimants particulars of debt/claim are vague, neglect to mention the work successfully carried out and are issued deliberately to deceive, make no mention of the work carried out, and are clearly an attempt to frighten the defendant into paying a sum which is not due.

 

In light of the above evidence the defendant requests the judge dismisses this frivolous claim, does grant the defendant a restraining order for bankruptcy against the claimant and orders the claimant to pay the defendants costs either in the indemnity or as standard.

 

I refer to

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

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)

[42man]

It might be a good idea also to post up the demand too....it is worth checking to see if there are any other abuses of process, but if you do then hide any personal details...

[mpctc]

What evidence do you have that you conducted any work for him other than your word? Is there any other reason that you were, or could have been, in the USA. how have you accounted for these payment from a tax perspective? have you advised his lawyers that the monies were for services rendered - or have you just denied a loan.

Rather than respond defensively (which is ahrd I know), try and keep the emotion out of it. stand back and look at the facts objectively and think if you ahve anything (as his lawyers asked) to substantiate your claims (over his). Whilst the burden of proof is undoubtedly on him to prove it was a loan it is important you try and think what you have to counter this. his proof is that monies were paid, to your wife, on a number of consecutive months. he can prove payments. ergo his claim. You will need to get this SD set aside. Courts do not judge on emotion but on what can be shown to be fact.

 

Thanks for that advice. The one thing that sticks out for me is that he is saying that he transferred £500 on 4 occasions. He can prove payments but not the amounts he says. The transfer were for either £1000 or £1500. I'm wondering how he is going to explain the figures. I was in the USA acting as a consultant, which is allowed under terms of a B1 visa. I was being paid in the UK and the amount paid to me in cash in the US I call expenses. This is, of course, declarable.