SD Help

[craigamc]

Hi

 

when sending the Application for set aside and witness statement should any other information or evidence be provided to help the court decide?

 

thanks

[42man]

If you have any accompanying documents such as CCA requests, previous letters outlining disputes, SAR then you should attach these to and refer to them in the witness statmenet

 

e.g The claimant sent a request under the Consumer Credit Act 1974 etc etc (see attachment 1) thern label the copy of the letter as 'attachment 1' (make sure you make a few copies of each of the documents too...

[craigamc]

thanks, if you don't mind, I might post my proposed witness statement for someone to cast their eyes over

[42man]

ok but delete out anything that might instantly be recognisable (account numbers, exact amounts, dates etc)

[craigamc]

hows this

 

 

1) Do not admit the debt because the debt is in dispute.

 

The original loan amount borrowed on XX Month Year was £250 and was credit to my bank account on XX Month Year – See Document ‘B’

 

The creditor New Forest Finance T/A Swift Money debited monies from my debit card 8 times between XX Month Year and XX Month Year without advance notice and caused financial detriment. These amounts totalled to £xxx (See Document ‘C’ & ‘D’)

 

I believe that the amount of £XXXX.XX referred to in the statutory demand includes a substantial sum of unlawful penalty charges and interest.

 

The creditor has not contacted me by any means whatsoever since the final payment was taken from my debit card on XX Month Year, nor have they served any default notice or notified me that any other monies were due.

 

Following receipt of the statutory demand, I have written to the creditor on 2 occasions disputing the debt, (see documents ‘E’ & ‘F’), once by recorded delivery (see document ‘G’) requesting a full statement of account detailing and confirming the original loan amount, charges, interest and payments made and to date have received no response.

 

8) That the Statutory Demand dated XX Month XXXX does not comply with insolvency rules as it was not personally served.

Edited September 26, 2012 by craigamc

[craigamc]

anyone?

[42man]

It might also be worth mentioning UTCC (unfair terms) and you should back up the non service of the demand and refer to this case (High Court cases should trump lower county court cases)

 

"In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly"

 

JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

[42man]

You should also highlight High Court Cases when using penalty charges......please remember that although the OFT ruling was on banks THIS COMPANY ARE NOT A BANK

 

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

[42man]

If this is a PAYDAY loan then I am not 100% sure of the implications of requiring a default notice, although it is likely that they would have headed your agreement "REGULATED UNDER THE CONSUMER CREDIT ACT" but again you can refer to this high court case

 

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 amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

 

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

 

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119