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    • Thanks for letting us know about this. I'm afraid that this website is mainly bad news about companies so it's very refreshing and very decent for someone to come along and to give praise where praise is due. How about a link to their website?
    • Having a little additional think about this, I think that your interests are best protected in the following way: You inform the seller that you are obtaining the quotes which I have referred to above. Having received the quotes, you then inform them that you are proposing to have the work carried out at XXX garage and that you will expect that the seller will reimburse you for the costs and associated expenses. You can tell them though that you understand that they may want to control the work being done to the car and so you are willing to allow them to do it but as the fault has manifested itself at this point and that it is clear that the problem is their responsibility, if they wish to carry the work out themselves then they will have to organise the collection vehicle and the delivery of it to you once the work is completed. Of course this will be very expensive for them and they will either fail to respond or they will refuse. Whatever their reaction, you would then go on to say that as they have failed to respond/declined the invitation to carry out the repairs themselves, that you are now going to your preferred garage – one of the two quotations which you have supplied – and you will have the vehicle repaired there. You are giving them an opportunity to comment. I think that if you use this approach, then you will be able to demonstrate very clearly that they had a choice and therefore they will be unable to disassociate themselves from the repairs which are eventually carried out at your chosen repairer. Even though this exchange of correspondence may mean that it will take a week or so longer to have your repairs carried out, I think you should do this in order to protect yourself in the best way possible
    • Please name the dealer   I would start off by sending them a letter of rejection seeing as you are within the 30 days. This doesn't mean that you have to reject it but it reserves your position. Secondly, on the basis of what you say, I don't think that you need necessary to find the cheapest place. You should be looking at the best quality that you can find. I think the best thing to do would be to get to competing quotations for the work you propose to have carried out – and not necessarily at the cheapest place, but a couple of proper reputable garages – authorised for that kind of vehicle. Inform the dealer as to what you are doing and providing with copies of the estimates for the work before you put it in hand. Give them five days to object or to make other comments. Make it clear to them that once the work is carried out that you will be looking to them to reimburse you. Of course you are opening a can of worms here because if you get some further problems – more serious – you may find that the dealer is starting to say that because you have carried out your own work so your own repairer on the car, they cannot now say that any defects were inherent in the purchase – and that they may have been introduced by 1/3 party repairer. I'm afraid that you have certainly fallen into a trap of buying a car a long distance away from where you live. We find that people often tend to do that because they think the car they have found is the only one in the world for them. They forget to factor in the difficulties that they will be if there are defects – particularly if the car stopped altogether – the cost of transportation to the dealer, the cost of having to travel up and down the country to collect the car – and of course these difficulties could emerge several times through the initial years of your ownership of the vehicle if you are relying on your statutory rights and expect the dealer to meet those obligations. Furthermore, if you have to bring a court action against them you are now dealing with multijurisdictional claims – suing out of Scotland against the defendant in England and that adds to the complications. It's too late for you to do anything about this – unless you actually decide to reject the vehicle – but at the very least, other people who come across this thread may get some benefit from these comments. I think it's important for you to get the best quality repair you can and to make sure that the dealer is aware of what you are doing so that if later on they try to deny responsibility for further defects, that you will be able to show that they were fully appraised of what you are doing and they will have less room to manoeuvre themselves out of their statutory obligations. I'm afraid that purchasing a car from one dealer and then having it repaired by another service provider, brings into the same kinds of difficulties that somebody who purchases a central heating boiler from one supplier and then has it installed by a different supplier find themselves in. When things go wrong, the seller blames the installer. The installer blames the seller – and you, the customer, are piggy in the middle. Not a good place to be. I notice that you are doing things on the telephone. Big Fail! Read our customer services guide. In your situation you should be extremely careful to make sure that you have got a record of everything and a full paper trail
    • What information do DVLA need for a provisional licence ?   Think the ID issue needs to be looked at a bit more. Surely you have birth certificate, school information, Doctors records. School and Doctors should provide a letter to help with ID.                
    • Amex as with any creditor must help you the FOS should go with you and make them remove all interest charged from the very 1st time of asking for help. the FCA regulations actually almost dictate it, they most certainly clearly state that if the are FCA registered they must help.   it's very telling they have no marked your credit file....almost as if they know they are wrong. it's also telling that an irresponsible lending complaint might well be in order hear too, they can just keep upping the credit limit without checking you can pay. and ofcourse covid plays its part here and they've already admitted as they allowed payments holidays until october in line with the rest of the industry and they should be continuing that. you problem is you keep using the phone, no paperwork no record of things discussed. i'd get an SAR off to them. and get the comms/account log and all the statements from day one and go nail them.
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I think that is right. It is just trying to stop the bankruptcy from proceeding, as you were not aware of the SD.

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So if I may ask....the up and coming hearing (is this the one you mentioned happening in November ?) What did you submit to get the hearing (which form ?)

 

One other question, from the court documents have there been any other hearings where there has been an adjournment due to you not being there ?

 

For your annullment

 

The defendant is applying for the annullment for the following reasons.

 

The defendant first became aware of any insolvency proceedings after the bankruptcy had been made.

 

The claimant claims to have served the (petition/demand) on me personally, however this is completely denied. The claimant was alleged to have served the (petition/demand) to myself. This is vehemntly denied, I refer to the witness statement of the defendant marked (XX) (your own witness statement). The claimant served the pettion on the defendants brother I refer to the witness statment (marked XX) of Mr (name of brother).

 

I wish to refer to the High Court authority of NAMASIKU LIANDU vs GO DEBT LIMITED

 

""to comply with section 7 of the 1985 Act they must be served on the alleged debtor in person. It cannot be left at an address or given to any other person who might be there at the time"

 

"The petitioner's evidence was that his son did not pass on to him the statutory demand. . He would have challenged it had he received it."

 

In this case the defendants appeal was upheld and costs were awarded against the claimant.

 

IF THERE ARE ADJOURNMENTS WHERE YOU DIDN'T TURN UP BECAUSE YOU DIDN'T KNOW THEN YOU SHOULD ALSO INCLUDE THIS:

Certificates of continuing debt and of notice of adjournment

 

14.5

 

(14.5.1)

On the hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the debt on which the petition is founded has not been paid or secured or compounded for the court will normally accept as sufficient a certificate signed by the person representing the petitioning creditor in the following form –

“I certify that I have/my firm has made enquiries of the petitioning creditor(s) within the last business day prior to the hearing/adjourned hearing and to the best of my knowledge and belief the debt on which the petition is founded is still due and owing and has not been paid or secured or compounded for save as to…

Signed……… Dated………”.

 

 

 

(14.5.2)

For convenience, in the Royal Courts of Justice this certificate is incorporated in the attendance sheet for the parties to complete when they come to court and which is filed after the hearing. A fresh certificate will be required on each adjourned hearing.

 

(14.5.3)

On any adjourned hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the petitioner has complied with rule 6.29, the petitioner will be required to file evidence of the date on which, manner in which and address to which notice of the making of the order of adjournment and of the venue for the adjourned hearing has been sent to –

 

(1) the debtor, and

 

2) any creditor who has given notice under rule 6.23 but was not present at the hearing when the order for adjournment was made or was present at the hearing but the date of the adjourned hearing was not fixed at that hearing. For convenience, in the Royal Courts of Justice this certificate is incorporated in the attendance sheet for the parties to complete when they come to court and which is filed after the hearing and is as follows – “I certify that the petitioner has complied with rule 6.29 by sending notice of adjournment to the debtor [supporting/opposing creditor(s)] on [date] at [address]”.

 

 

 

 

The claimant notices that there are no certificates / affadavits or witness statements of any continued service in the court files. I refer to the authority of

 

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

 

'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. The rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

The defendant also wishes to state as the debt is for an alleged (credit card / loan / etc)

 

The alleged creditor has provided no consumer credit agreement with the prescribed terms despite a legal request made under the Consumer Credit Act 1974

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account.

 

The alleged creditor has not provided any details of any potentially missoldlink3.gif payment protection insurance which may have been added to the account

 

The alleged creditor has not provided any notices of assignment.

 

 

 

 

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 interestlink3.gif.’

 

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, signaturelink3.gif 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 petition 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 petition.

 

  • 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 amendmentlink3.gif 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 Particulars of Claim,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

 

The defendant also wishes to make it clear that there is no avoidance available by the claimant in his duties to provide the agreement under the Consumer Credit Act 1974 and

 

I refer to

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

Jones vs Link Financial

 

  1. In my judgment the reason for the reference to "duties" in section 189 is that an assignee only becomes the "creditor" where the statutory duties relevant to the enforcement of the creditor's rights have passed to the assignee. This will not be the case where there has been an equitable assignment of which no notice has been given. In such a case the debtor will remain legally liable to the assignor and the assignor will remain responsible for the performance of the statutory duties relating to enforcement, such as duties to provide information and notices.
  2. Where, however, there is a legal assignment the debtor's liability will be owed to the assignee and it is the assignee who will have to perform the statutory duties relating to enforcement. This is not because he becomes under a contractual obligation to perform those duties, but rather because he cannot assert his rights under the regulated credit agreement without accepting the statutory obligation to perform duties under the 1974 Act relating to enforcement of those rights.
  3. The legal assignee stands in the shoes of the assignor. The enforcement of the assignor's rights under the regulated credit agreement was subject to performance of the statutory duties laid down in the (Consumer Credit) 1974 Act, and the legal assignee's rights are similarly so subject.

In light of the above evidence and the imperfection of the service of any documents, the defendant gracefully requests the Judge annuls the bankruptcy and the creditor allowed to oppose the petition under the Slip Rule.

 

The defendant also requests costs against the claimant.

Edited by 42man

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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Post 12 mentions hearing on Friday about stay of execution as the official receiver has presumbly asked for this to be considered urgently.

We could do with some help from you.

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OK thank you UB.....the OP needs to get the annullment in ASAP. Copies to the original creditor, copies to the official receiver and the court !!

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

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Thank you for the quick reply. The original creditor was Sky Card and it was later taken over by Barclaycard. The company that took me to court is Lowell Portfolio I Ltd and their solicitor is Hamptons Legal.

 

Yes, I was made bankrupt by the Court in my absence, but immediately I received the court's letter informing me of this, I applied a stay of proceeding and say of advertisement, sighting reasons that I was not aware of the bankruptcy charges and court hearing (I got the idea from this website). I must say that the only letter I ever received from the court was the letter declaring me bankrupt. I have received a letter from the Official Receiver requesting I attend an interview. I called them to say that I have applied for a stay of proceeding and I will not be attending any meeting till after the hearing. I was told that they have not advertised it yet, but my name is already on the IIS website. I will be able to say more later today after a visit to the Court. Cheers.

 

I also have had issues with these goons. I had no notice of anything through the door until the land registry contacted me as I'm a homeowner. When I spoke with the court they had been given an incomplete address obviously by Lowell. I assume that this is to help mail 'go missing' so that I am declared banktrupt in my absence. Lucky for me when I spoke to the court the original date had been adjourned to a date several weeks from now. If it hadn't of been I would be bankrupt now also without receiving anything. Convenient eh!

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Hello Caggers and thank you for the support. I attended the Court hearing today and the Judge ordered a stay of proceeding till the Annulment hearing takes place in about 4 weeks time. The OR tried to object it for reasons that they won't be able to carry out their searches, but the Judge still went ahead with the order for the stay of proceeding. However, the Judge wants me to submit my evidence within the next 2 weeks and send copies to the claimant and OR. The claimant should then submit their defense a week later. My thought was should it not be the Claimant first providing their evidence to prove the money is actually owed and me providing my own defense at the back of that. What was also strange to me was that the Judge was taking guidance from the Claimant's lawyer. Pardon my ignorance, I thought the Judge is supposed to know much about the law or a court clerk guiding the Judge and not the Claimant's lawyer. What if he leads the Judge down the path that might be favorable to his client.

 

I was also able to get photocopies of documents submitted to the Court by the Claimant. I also got a letter from the original Creditor that they are still dealing with my request. My thought was they should provide the information 12 + 2 days after the request was sent. Since this period has passed, does this mean that the debt is now unenforceable? Or should I write further letters to chase for the information, mind you I've only 2 weeks before I must submit my defense.

 

The lawyer of the Claimant was requesting for my evidence that I was not living at the property when the SD was served. I did say that I was at the time going through separation and although I was not living in the property at the time the SD was served, I was not renting but staying with a friend, therefore I do not have any bill as requested by the Claimant's lawyer.

 

42man asked when I took out the credit card - th of January 2006. Does this have any bearing on the case?

 

Hope to get some more guides.

 

Regards.

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OK thank you UB.....the OP needs to get the annullment in ASAP. Copies to the original creditor, copies to the official receiver and the court !!

 

Hello 42man, sorry for the ignorance, can you tell me what you meant by OP and a copy to original creditor (Barclaycard is the original creditor and it was Lowell that filed the Bankruptcy). The Judge has requested I send a copy to Lowell, if this is the case, should I still send a copy to the original creditor (Barclaycard). Cheers and thanks for the support. It means so much to me.

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Hello 42man, sorry for the ignorance, can you tell me what you meant by OP and a copy to original creditor (Barclaycard is the original creditor and it was Lowell that filed the Bankruptcy). The Judge has requested I send a copy to Lowell, if this is the case, should I still send a copy to the original creditor (Barclaycard). Cheers and thanks for the support. It means so much to me.

 

I think they were just covering all bases. i.e just in case Barclaycard still technically owned the debt. If they don't, having sold the debt to Lowells, that you just send copies of the paperwork to the Lowells people dealing and official receiver.

 

Going back to an earlier post, the date you took out the agreement is relevant, as it affects how the judge will look at the debt. My understanding is that ageements taken out after the CCA was amended in 2006 are a lot easier to enforce. It would just be a case of proving the debt exists and that the claimant has the right to enforce. Your agreement was taken out prior to the CCA change, so the 2006 act does not apply to your agreement.

 

As far as I can see, your bankruptcy has just been put on hold until November, when the annulment will be considered. I think you will have to be a bit careful in just arguing about the SD not being served. They may look at what has happened in regard to all parties trying to resolve the outstanding debt issue, before the bankruptcy petition was done.

 

It may be advisable that you seek proper legal representation to make sure you are not stitched up, with the judge accepting the claimants version and just letting the bankruptcy stand. I just fear that if you try to deal with it yourself, you will get confused by technical matters being raised and you won't know how to counter.

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Some excellent points from Unclebulgaria

 

So what you will need to do in this case is fill out form 6.19 (ERROR Annullment form is 7.1a) and write an accompanying affadavit, and with regard to the non service of the stat demand the person you were staying with should also write a witness statement stating that you were staying with them.

Edited by 42man

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Hello, I have downloaded the form 6.19 and filled it out. But it is only one page document. Should I be handing over my defense with this form eventhough it is called "Noticeby Debtor of Intention to Oppose Bankruptcy Petition". Since I have already been made bankrupt, should I still be using this form? I'm also worried that the Judge asked me to present my case before that of Lowell who are to reply a week later. My concern is that Lowell can come up with a version of document I've not had the chance to see and claim it is the real thing.

Cheers everybody.

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Apologies it is form 7.1a (skipping from 6 or 7 threads I do miss it on occasions)

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When I said OP this means Original Poster

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Hello and thanks for the reply. I have been reading the Ruskine v American Express case and I was not clear on the part of s 78 (1) not applying when the contract has been terminated. Does this mean that since I stopped making the repayment, the contract is considered terminated?

 

Also, should Lowell not provide to the court a copy of the agreement to prove they now own the debt?

 

As I did not receive a copy of the NOA, does this mean that Lowell technically do not own the dealt?

 

Cheers.

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I'm not up to date on lawful/ulawful termination, hopefully somebody else may contribute to this.

 

Lowells would not have to have provided anything at all until you came on to these forums and decided to fight and you now know more about the Consumer Credit Act 1974.

 

You can state that you believe the debt has not been assigned but that is highly unlikely as they probably would have purchased it in a group of other debts, you could ask for both the notice of assignment and the deed of assignment (but the deed tends to be a legal document between the original creditor and the DCA).

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Hello and thanks for the reply. I have been reading the Ruskine v American Express case and I was not clear on the part of s 78 (1) not applying when the contract has been terminated. Does this mean that since I stopped making the repayment, the contract is considered terminated?

 

Also, should Lowell not provide to the court a copy of the agreement to prove they now own the debt?

 

As I did not receive a copy of the NOA, does this mean that Lowell technically do not own the dealt?

 

Cheers.

 

I believe a termination notice is issued, after a period of a default not being rectified. It would just be a letter saying that they had terminated the account.

 

The agreement would not prove they owned the account. They should provide either the original or copy of the agreement that underpins the debt. For your debt as the account was taken out in Jan 2006, they would have to provide original or copy of the agreement to enforce the debt. The CCA was changed in April 2006 making it easier for debts to be enforced without a copy of the agreement.

 

You could hold Lowell to strict proof that they own the debt by showing the court a copy of a deed of assignment. Normally when a debt is sold the original creditor and/or first outside DCA will write to confirm a notice of assignment. A deed of assignment is different, as that would be the main document that the buyer has to show that they bought a bulk load of debts including yours and they don't often want to reveal this, as it is commercially sensitive. It may reveal how little they paid for the debt.

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Thanks guys. The judge has given me till the end of next week to submit my defence and Lowell till the end of the following week to submit theirs. Could I still request for both proof of Assignment and Notice of Assignment when I submit my defence and will Lowell need to provide it when they submit their defence or when they appear at the hearing. Cheers.

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You can request the judge to order Lowells to provide EVERYTHING....deed of assignment, notice of assignment, default notice, termiation notice, statements for the duration of the agreement, details of PPI, and it should be an 'unless' order, so if they can't find the documents by (date) then the bankruptcy be annulled.....please remember that you will have to go back to petition stage after the annullment under the 'slip' rule.

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This is really important too

 

IF THERE ARE ADJOURNMENTS WHERE YOU DIDN'T TURN UP BECAUSE YOU DIDN'T KNOW THEN YOU SHOULD ALSO INCLUDE THIS:

Certificates of continuing debt and of notice of adjournment

 

14.5

 

(14.5.1)

On the hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the debt on which the petition is founded has not been paid or secured or compounded for the court will normally accept as sufficient a certificate signed by the person representing the petitioning creditor in the following form –

“I certify that I have/my firm has made enquiries of the petitioning creditor(s) within the last business day prior to the hearing/adjourned hearing and to the best of my knowledge and belief the debt on which the petition is founded is still due and owing and has not been paid or secured or compounded for save as to…

Signed……… Dated………”.

 

 

 

(14.5.2)

For convenience, in the Royal Courts of Justice this certificate is incorporated in the attendance sheet for the parties to complete when they come to court and which is filed after the hearing. A fresh certificate will be required on each adjourned hearing.

 

(14.5.3)

On any adjourned hearing of a petition where a bankruptcy order is sought, in order to satisfy the court that the petitioner has complied with rule 6.29, the petitioner will be required to file evidence of the date on which, manner in which and address to which notice of the making of the order of adjournment and of the venue for the adjourned hearing has been sent to –

 

(1) the debtor, and

 

2) any creditor who has given notice under rule 6.23 but was not present at the hearing when the order for adjournment was made or was present at the hearing but the date of the adjourned hearing was not fixed at that hearing. For convenience, in the Royal Courts of Justice this certificate is incorporated in the attendance sheet for the parties to complete when they come to court and which is filed after the hearing and is as follows – “I certify that the petitioner has complied with rule 6.29 by sending notice of adjournment to the debtor [supporting/opposing creditor(s)] on [date] at [address]”.

 

and don't forget to use the Boggis statement too, you need to refer to high court cases as much as you can....

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Makes sense to hold them to strict proof they own the debt and that you have been notified of the change of debt ownership. Also for the original or copy of the original CCA to be provided, evidence of the debt by way of statements of account for the whole term then CCA was in force.

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So inrelation to the above....

 

The defendant notes that in his absence the petitioning creditor has failed to supply any certificates nor affadavits of continued service.

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You can request the judge to order Lowells to provide EVERYTHING....deed of assignment, notice of assignment, default notice, termination notice, statements for the duration of the agreement, details of PPI, and it should be an 'unless' order, so if they can't find the documents by (date) then the bankruptcy be annulled.....please remember that you will have to go back to petition stage after the annulment under the 'slip' rule.

 

Hello 42man, thanks for the continuous flow of information and not to forget unclebulgeria67. What I will like to ask is at what point do I need to make the request to the Judge. Would it be during the Annulment hearing or should I include it in my defence, since Lowell are to submit their defence a week later. I have been reading about CPR 31.14 or is it too late in my case to send one. Sorry I keep asking you questions as I feel that I've only got one chance to get this right.

 

Cheers.

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I almost forgot to mention that I got the SAR back from Barclaycard yesterday. I don't know if it is a good thing, but it only contains copies of the monthly statements and nothing else. The cover letter read " You recently asked for a copy of the personal information that we hold on you. Please find a copy of your statements enclosed with this letter.

 

Unfortunately, we can't provide you with copies of any individual default charges that have been made on your account. However, you'll find these charges detailed on the enclosed statements".

 

No other document was included. I wonder if this is enough to satisfy the SAR I sent, as there were more documents I requested. By the way, nothing has been sent regarding the CCA I also sent.

 

Cheers.

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They may still send information to you, hopefully (for their sake) within the 40 day timescale, if they don't then they have to confirm in writing that what they have sent you is all they have. Without an agreement then it is game over. As for asking for information then yes, keep it in the defence, but if you need to ask for the unless order, and be firm on what you require, agreement, deed, termination notice, details of any PPI etc etc. I think you have just as stronger points in the non production of any certificates / affadavits of continued service along with them not making any personal service. Get your costs, this is going to bite them in the backside....

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Thank you for the reply. I will hopefully finish my defence this weekend and hand it in personally to the Court and OR. To get it to Lowell, should I send it recorded delivery on theday it is due or couple of days earlier, making sure it gets to them on the due date? Cheers.

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Make sure it is in the court files on the day....you need to send it to the opposing side too. If you can physically go to the court too then that would be great, as I said if there are no certificates/affadavits of continued service from Lowells, then that is another point to you getting this debarcle thrown out.

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