Stautory Demand - I need Help Please!

[Bandit127]

On a point of detail. They have a common law obligation to look after you interest when dealing with a repossession. Despite whatever the T&Cs say. You should get a price from a few different sources for your models of equipment at 6 months old. If you can, 3 sources.

 

The average of these will give you a figure of what should be obtained. Hopefully, there will be a big difference to what was obtained.

[42man]

Loulou I have unapproved 2 of your posts as you have cut and pasted something which is copyrighted by somebody else.

[LouLou70]

Thank you to everyone who has replied (and sorry for the cut&paste faux pas 42man!).

 

I think the consensus seems to be that we are stil lin dispute over the amount claimed in the SD because they have not provided me with the proof I requested in my last letter that they at least tried to achieve fair market value. I intend to ask to have the SD set aside on this basis. Assuming that it is set aside they may well then begin civil proceedings. If so, then I will defend this by again by arguing that they have sold the equipment to one supplier without any evidence that they can produce (assuming they can't) that they have achieved anything like fair market value. If the SD is not set aside then I can only argue that it wasn't served correctly and thus any ensueing bankruptcy petition would be invalid.

 

I genuinely don't have any assets so making me bankrupt wouldn't achieve anything - except wipe out all my debts I guess!! I will if I can use the small amount that I have been offered by a family member to settle with creditors across the board. I would just like to get this over and done with and get on with my life.

 

I am sure that these guys will have done a 'deal' of some sort and re-leased the equipment that they sold at a ridiculously low price back to the manufacturer. I have been offered 'almost new' laundry equipment in the past by them for not far off the 'new' price!

 

Anyway, thanks again everyone.

[unclebulgaria67]

When you do the set aside, I would suggest that you say that you have an ongoing dispute in regard to the amount of debt following the end of a contract and that the creditor company has not replied to correspondence. The request to set aside, is to allow both parties to continue with appropriate discussion and negotiations over the dispute to avoid unnecessary use of court time and inapproriate use of the insolvency system, as a first option to resolve a contractural dispute.

 

Something like that. You have to flesh it out a bit.

 

I have since read about the serving of SD's and the rules appear to have been changed. There is now a difference of opinion. It would appear sending an SD by normal post is allowed, provided they have an affadavid saying that the SD was sent on x day to address xxxxx where they know the defendent is resident. Setting aside an SD on the basis of wrong delivery of an SD does not appear to be enough and saying that an SD was not received may not be adequate to avoid a bankruptcy petition.

 

So I think you will have to set aside purely on the basis that there is an ongoing dispute and that use of the insolvency system is not appropriate at this stage.

[LouLou70]

Thank you. Can you give me any advice please on the acual forms to fill out and what I should put on them? Should I post them to the court or take them in personally?

[42man]

You will need forms 6.4 (set aside) and 6.5 (witness statement) you can find them both here and you can use continuation sheets too - http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

Once you have filled them in then you should take them in or post them (recorded delivery) to the court, the court will be the closest court to you that handle bankruptcies / insolvencies - NOT ALL COUNTY COURTS HANDLE THESE TYPES OF CASES, so if in doubt then ring the court first. Normally in a stat demand the creditor names the closest court to you to set aside. There is no court fee in setting aside a demand.

 

You should use phrases like

 

The defendant totally disputes the debt, the defendant avers that the claimant has not answered the dispute etc etc - you can find plenty of threads on these forums regarding stat demands - have a look here - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes

 

You can back up any of your disputes with high court law (if you know of any). If you do back it up with high court law then remember a lower county court should abide with a judgment from a higher court.

[42man]

If you need to attach any letters / correspondence then you should refer to these in the witness statement, when you submit the stat demand you need to take the original to the court along with your set aside form 6.4 - help here filling this out

 

How to fill in Form 6.4

 

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from the creditor) be set aside

 

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the witness statement (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of creditor or solicitors)

 

For (e)

The applicant’s address for service is: (e) (insert your name and address)

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

[42man]

Make sure you take at least 2 copies of each of your documents too.

[42man]

Your costs should be submitted so they are in the court files at least 7 days before the hearing, but you can only do this when you have a court date - this is a link to how to fill out a LITIGANT IN PERSON costs sheet - http://www.consumeractiongroup.co.uk/forum/showthread.php?327997-Statutory-Demand-from-Hamptons-Legal-WON-STAT-DEMAND-DISMISSED/page2&highlight=hamptons

[LouLou70]

Thanks 42Man.

 

On the Stat demand they have added interest of £557.70 based on 5% above Finance House BAse RAte. This was the amount on the original hire agreement to the Company (before it went into liquidation) that was specified as being owed in the case of default. It seems that they are trying to claim that through me as a guarantor. I had read somewhere that they cannot claim stat interest on an SD. Does this count?

[LouLou70]

Also, I have just noticed that the SDis dated 30 July 2012. The covering letter from Bermans is dated 23rd October 2012 and I received it 24th Oct 2012. Why would they hold on to it for so long?

[LouLou70]

Hi 42MAn. Just going through the Witness statement. Is it appropriate for me on this fom to list the correspondance sent and received by both sides - for clarity - this constitutes 8 letters and a phone call in total.

[42man]

Yes you can list all correspondence....I am not so sure of the interest though you mention in post #35 above

[Guest]

can still also question service on form, albeit acknowledged. would be up to cred to explain why no personal service as rules require it 'if practicable in the particular circumstances'.? then for J to decide.

Edited October 30, 2012 by Ford

[LouLou70]

Hi Ford. Really sorry - I didnt understand that. Could you explain for me please.

[unclebulgaria67]

Ford is saying that on the set aside, you could also question the service of the SD, given the dates you mention in your post. If it was dated 30/7/12 and not received until 24/10/12, then the service of the SD is iffy.

 

The rules as ford says are for SD's to be personally served 'if practicable in the particular circumstances'.

 

It would be for a judge to decide about the service of the SD. It was dated 30/7/12 and then when it was received, it wasnot even personally served. What attempts did the creditors make to serve the SD between July and October ? This is not for you to answer, but if there was any hearing about the set aside, this question could be asked.

[Guest]

loulou

re that '4 month' expiry period you mentioned sols mentioned, could this be re scots law?

Edited November 1, 2012 by Ford

[Guest]

..........

 

The rules as ford says are for SD's to be personally served 'if practicable in the particular circumstances'. ...

 

so, the presumption would be that there should be personal service unless the 'particular circumstances' prove/allow otherwise?

[LouLou70]

Thank you everyone. I am sending the papers to the court today. I will update you when I have something new.

[Guest]

also, note the sd service requirements before a petition (insolvency rule 13.3.3).

Edited December 11, 2012 by Ford