Help Please! Stat Demand

[kezvin]

Hi can anyone please help me? My mother in law has just been sent a statutory demand under section 268.

 

She has approximately £3500 outstanding on a debt from a creditor that she has been paying for the last 5 years which she got acting as a guarantor for her daughter.

 

She received a CCJ in connection with this originally and completed attachment of earnings forms which the judge later used to set up the installments to repay the creditor with an AOE Order, she has never defaulted from this original agreement within five years.

 

Now she is obviously beside herself with worry just before Christmas of being forced to sell her house.

 

Can she ask for this to be set aside as she has never defaulted and is continuing to make repayments, its simply the creditor wants his money quicker as stated in his letter to her.

 

I have completed budget forms with her and things are tight enough for her without having to up the payments to him and we cannot get the debt under £750, what can we do? I would be interested in your responses.

Edited December 18, 2012 by citizenB
formatting

[kezvin]

Also if she can set aside what forms does she need to complete?

[DonkeyB]

Whoa! You need to contact the court and complain. If your mother is adhering to a court order, ten the creditor MUST approach the court for a redetermination, as far as I know, rather than issue bankruptcy proceedings.

 

Will try and get 42man onto this.

[kezvin]

Whoa! You need to contact the court and complain. If your mother is adhering to a court order, ten the creditor MUST approach the court for a redetermination, as far as I know, rather than issue bankruptcy proceedings.

 

Will try and get 42man onto this.

 

Thank you it did seem a bit dodgy but obviously the threat of bankruptcy and selling houses makes you lose perspective!

[unclebulgaria67]

Yes do the set aside on the basis that payment is already being made as agreed following a CCJ. The arrangement has been in place for 5 years and no payment has ever been missed.

 

The SD is just being used to bully her into larger repayments, which is an abuse of the insolvency system. The claimant with the CCJ should just have written to her asking for increased payments and if she did not agree, then pay the relevant fee for a court to look at the repayment level. There is process for this, which should be followed and the claimant should know this.

 

If she does the set aside then this should be granted. I can't see that bankruptcy would ever be granted against someone making regular payments, as already agreed by a court.

 

I will ask the site team to move this post the legal issues folder, so you can get help with the set aside process.

[DonkeyB]

How was the SD served? By post?

[kezvin]

it has been posted through her door saying;

 

Please find enclosed a statutory demand under section under section 268. The demand is reference to your outstanding judgement XXXXXX

I am no prepared to accept XXXX per month to repaagy this debt.

I would like you to contact me and offer a suitable, voluntary, offer to repay this debt at a mutually agreeable rate.

If you do contact me regarding this matter and we can agree suitable terms i will not present the bankruptcy petition to the courts.

 

Form 6.2 included.

 

This is why we completed budget forms to see if we could up payments in the first instance but thinks are too tight currently plus also i think he would likely to decline just because he's that type of person. It has been suggested to me before that its a hollow gesture to force us to pay but its a gamble I'm not willing to take as its my mother in laws house, etc.

[cerberusalert]

It wouldn't be Lowell by any chance?

[DonkeyB]

Oh dear... sounds like a private individual. This is clearly using the bankruptcy laws as a tool of blackmail, not as a tool of last resort.

 

But... you (a) need to get this set aside on the grounds stated above by uncleb – and (b) claim your costs in doing so, which will annoy the hell out of this idiot.

 

Then complain to the court about the abuse of process – little will happen, but copy the creditor in to annoy them.

[DonkeyB]

And their letter indicates their desire – this should, as mentioned, be requested via a redetermination in the courts. The only agreement now of any kind is the court-sanctioned one that your mother in law has honoured.

 

If this person is also a business/tradesman, try complaining to their trade body, the OFT and trading standards. Anything to cause them aggro for being a***holes.

[citizenB]

Yes, I agree with the others, this company needs to make an application to the court if they require to alter the judgment already in place. After 5 years, I doubt the Judge will agree.

 

You need to get this set aside - you will require forms 6.4 and 6.5 for your affidavit.

 

What is the date on the demand ? Make a note on the envelope that it was pushed through your door today as you will need to say in the affidavit when you were given this. Although IMHO pushing it through your letter box is hardly "serving".

[citizenB]

You have 18 days to get this set aside.

 

Is there a court mentioned on the demand ?

[citizenB]

I have sent S.O.S. to 42man, however the advice you have been given is pretty sound - you can download forms 6.4 and 6.5 - just pop them into a search engine.

[unclebulgaria67]

These are the forms that need to be completed.

 

6.4 set aside application.

 

6.5 Affidavit

 

Not an expert about completing these, so perhaps others can guide you. Once completed they need to taken into the nearest court that handles insolvency cases. Just in case you are not aware, the courts system will have no idea that an SD has been issued. The first they get to hear about it, is either when a set aside is requested or the claimant submits a bankruptcy petition if not previously set aside.

[kezvin]

Thank you everyone for your help, many thanks for the links to the forms!

 

Believe me my christmas will be better with a happy mother in law!

 

On form 6.4 do I fill in section a or b? Section e is that for a solicitor to complete?

 

On form 6.5 it states 8 reasons for a set aside do I ignore these and put down what was previously mentioned in this thread?

 

Do I claim costs on this form too? What would seem reasonable costs?

THANKS AGAIN ALL FOR YOUR PROMPT HELP!!!!!!!!!!!

[kezvin]

Oh and its Colchester County Court, Essex

[unclebulgaria67]

From what I can see, 3 copies of the completed signed forms need to be taken to the court. (13.4.1)

The application (Form 6.4) and witness statement in support (Form 6.5) exhibiting a copy of the statutory demand must be filed in court within 18 days of service of the statutory demand on the debtor. Where service is effected by advertisement the period of 18 days is calculated from the date of the first appearance of the advertisement. Three copies of each document must be lodged with the application to enable the court to serve notice of the hearing date on the applicant, the creditor and the person named in Part B of the statutory demand.

 

 

 

6.4 form

 

At the top the Court can be entered, but the date/time would need to be entered by the court staff.

 

a) name of person making the SD (claimant)

b) name of debtor ( MIL)

c) date of the affidavit (6.5 form)

d) name and address of the claimant who issued the SD and any other party they have entered to be responded to.

e) MIL address.

 

MIL to date and sign the form. It does not need to be signed by a solicitor.

 

6.5 form

 

a) MIL name and address. ( not sure what is meant by description)

b) date SD received.

c) This is where you enter. The debt is already subject to a country court judgement dated xx/xx/xxxx issued by xxxxxx court. ( reference no. if known). Since this judgement, the debtor has paid a monthly sum of £xx to the claimant in line with the court judgement, with all payments made on time and these payments are continuing to be made.

 

I can't see that any of the 8 alternatives apply, so something along the above lines need to be entered by c)

 

Then not sure what would be entered against 8) about insolvency rules. I presume that you would enter something like. The claimant is trying to use the insolvency process to gain an increase in regular payments already decided in a County Court judgement, when they should instead be asking the County Court to consider an application to re-determine the payments. This is an improper use of the insolvency system and shows disrespect to the previous judgement of a court.

[citizenB]

Check with the Colchester Court to ensure they do indeed deal with Insolvencies.

 

You just take MiL along to the court where she will swear on oath and sign in the presence of a Court official that the information on the documents is accurate.

 

There is nothing to pay as far as I am aware.. I didnt have to pay anything when I took my affadavit along.

 

You need to put your costs on a separate sheet.. I am not sure that if you give them to the Court at the time of signing.. I think you do that later.

[42man]

If your mother has been paying religiously, and not missed any payments in line with a written agreement or a court order then estoppel would come into play. It is a complete defence, you should set this aside and claim your costs in the process.

 

You have got 18 days from when you received the stat demand to set it aside.

 

Your 6.5 (Witness statement) should read along the lines of

 

The defendant firmly disputes the claimants actions, which are clearly a frivolous and unlawful attempt to pressurise the defendant into paying.

 

The defendant has been maintaining payments on a County Court Judgment dated (if you don't have the exact date then say 'on or around').

 

The defendant avers that the claimant is judicially estopped 'by record' and any further relief under the insolvency rules is vehemently denied.

 

The defendant avers that the use of the demand in this instance is a deliberate attempt to frighten the defendant into paying thus making the presentation of a demand unlawful.

 

The defendant notes that no attempt whatever at personal service has been made.

 

I quote - Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'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 defendant gracefully requests that the judge orders the dismissal of the petition and pays costs either in the indemnity or in the standard.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the cases of:-

 

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

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 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).

Edited December 19, 2012 by 42man

[42man]

You may also like to write a short letter or email to the claimant stating.

 

Dear Sir / Madam

 

I am in receipt of your statutory demand which was received by me via (1st Class/2nd Class post) on (date). For the record I will not be entering any kind of litigation via the postal service and will be setting this aside in the Colchester County Court and claiming my costs in the process.

 

I trust this makes my position completely clear

 

Yours faithfully.

[citizenB]

Nice one 42man.

 

That should put them back in their box.

 

Would the OP attach their cost schedule to the affadavit ?

[DonkeyB]

Great stuff, 42man.

[42man]

What is the debt for if I can ask ? any PPI ? excessive charges at all ?

[citizenB]

Hi can anyone please help me? My mother in law has just been sent a statutory demand under section 268.

 

She has approximately £3500 outstanding on a debt from a creditor that she has been paying for the last 5 years which she got acting as a guarantor for her daughter.

 

She received a CCJ in connection with this originally and completed attachment of earnings forms which the judge later used to set up the installments to repay the creditor with an AOE Order, she has never defaulted from this original agreement within five years.

 

Now she is obviously beside herself with worry just before Christmas of being forced to sell her house.

 

Can she ask for this to be set aside as she has never defaulted and is continuing to make repayments, its simply the creditor wants his money quicker as stated in his letter to her.

 

I have completed budget forms with her and things are tight enough for her without having to up the payments to him and we cannot get the debt under £750, what can we do? I would be interested in your responses.

 

What is the debt for if I can ask ? any PPI ? excessive charges at all ?

 

Looks like the OP acted as guarantor for a daughter..

[42man]

I have edited post #19...

 

Once you have filled out forms 6.4 and 6.5 make sure you sign and date the 6.5 then you need to take the original stat demand along with your 6.4 and 6.5 (please take several copies of each) then you need to preferably visit the court (there is no cost in setting aside a stat demand in a local county court) and hand in the documents. You should wait for a hearing. If the creditor has any sense then they will withdraw it, they will lose in court. Your costs need to be in the court so that they are in the file at least 24 hours before the hearing date, but you have time at the moment before submitting your costs, get the 6.4 and 6.5 in at the court - you may like to attach a copy of the original judgment and a statement of payments too, but you need to make reference to these in your 6.5....

 

Keep us posted and if you aren't sure of anything then please do shout....