Sorry another Statutory Demand plead for help.*** WON ***

[Imanostrich]

Hi members,

 

I'll start by apologising for another post regarding a statutory demand.

 

I have searched other posts but it seems that just about every case is different.

 

I received my SD on the 8th of January 2013 (after the serving officer informed me in writing he'd be coming on the 7th!) and it relates to a Barclaycard account that has been now taken over by Bwlegal.

 

The debt remains outstanding as I thought I'd cleared this when I took out a secured homeowners loan with Barclays in 2008. My loan was paid out in a series of cheques that I had to issue to my creditors. I believed this was the case with the barclaycard payment but kept receiving demands. The demand notices had the fifth number of my account missing so I thought they'd figure out my payment eventually and ignorantly I'd decided they couldn't pursue me anyway for an account that wasn't then same as mine (because of the wrong account number).

 

I contacted Barclays secured loans department on tuesday (8th) and asked them whether they could confirm that the cheque for Barclaycard had been cashed and if so to what account the payment went but was told by the customer service assistant that that would take too long so the best he could do was to send me a list of the cheques that were issued and for what amounts. I was told this would take up to seven days and up to today I still have not received this information.

 

The last thing I need right now is to be declared bankrupt and loose my home as I have a wife and three kids, the house has a mortgage and the secured loan so I doubt that I have any equity especially if the house is taken away from us and sold at whatever someone is prepared to pay. I do have a car that I use for work so again could do without loosing this.

 

Because of the timescales am I better just trying to offer Bwlegal some kind of monthly payment? also what happens to the money that I borrowed and am repaying if I haven't actually used the full amount of the loan by the cheque for barclaycard not being cashed?

 

I know in hindsight that this should've been sorted out in 2008 or even 9 but I really would appreciate any advice anyone can give me as sleep deprivation is making me increasingly irrational.

[honeybee13]

Hello and welcome to CAG.

 

Weekends are often quieter here, but I hope some of the guys will be along later with advice for you. Please bear with us.

 

My best, HB

[unclebulgaria67]

You could advise BWLegal that you believe that Barclays may have made a mistake as you believed that the Barclaycard has been paid off with a secured loan and that you are currently requesting the details.

 

You have 18 days from the date the SD was served to submit a set aside to your nearest county court that deals with insolvency, so you have a little time. Chase up the Barclays secure loan people on Monday and make sure they are aware of the urgency.

 

If you don't get the information in time don't worry, as you can still do the set aside on the basis that you believe that Barclays have made an error in not transferring funds from a secure loan to clear the Barclaycard balance and have written to Barclays to find out what went wrong. Once the set aside is in, then at least the court knows the bankruptcy move is contested. It can be sometime after an SD that is uncontested before bankruptcy petition is served, so you have plenty of time to get this resolved and make an offer of monthly payments if you need to.

[oleg]

Although you don.t say so, I presume Barclaycard sold the account to Lowell and BWL are acting on Lowell's behalf. Can you confirm?

And if this is the case, there have been other recent threads you should read of people in similar circumstances.

Olég

[FitForPurpose]

The fundamental issue with a bankruptcy process is that it cannot be used against a debt that is disputed upon genuine and substantial grounds. It would be an abuse of court process to do so, although of course "substantial" can be a little ambiguous.

 

A key aspect right now is to ensure that your creditors are aware that you dispute the debt. Write to them and outline your dispute clearly and without emotion. Simply say that you dispute the debt entirely because you believe the debt was paid and that you are now seeking evidence of this from the original creditor. Also given that you dispute the debt, ask them to withdraw the Statutory Demand or else you will apply for it to be set aside which will have a cost implication for your them. Note the 18 day limit from serving to set aside application, so you might have to apply for it to be set aside anyway.

 

Write to Barclays and Barclay Card and request copies of relevant statements for the time in question. While you're at it, send a Subject Access Request under the Data Protection Act which will force them to reveal all data they hold about you. This will include notes they have made about your account. Technically they can charge for this, but tell them that you are only asking for your data because you believe they made an error and if they charge you a fee, you will reclaim it, so they should process the request without charge. And you might as well ask for a copy of your original credit agreement in a request pursuant to sections 77/78 of the Consumer Credit Act 1974. This will require you to send a postal order for £1 as a statutory processing fee.

 

The important thing is to keep copies of those requests and send by recorded delivery as this will form the basis of your request to have the SD set-aside; that you entirely dispute the debt and that the claimant has not yet responded to requests to evidence the debt or deal with your dispute, thus proceeding with bankruptcy action would be premature and an abuse of process.

 

FFP

[Imanostrich]

Thanks everyone,

 

Its amazing how much difference it makes knowing that I'm not relying on my own irrational mind right now.

 

The debt has been bought by Lowells they were the first to get the account number wrong (it was previously being dealt with by Mercers and Credit Solutions).

 

I was told last Tuesday that Barclays Secured would take up to 7 days to get the list of cheques and amounts to me. I'm hoping that this information arrives tomorrow (Monday 14th) and I'll have enough information to then ask Barclays to check up that the cheque that was issued to me for Barclaycard was either cashed (in which case I will be in a better position to then speak with Barclaycard to ask where the payment was credited) or if it was not cashed than hopefully I can get the amount of money issued again only in the name of bwlegal or myself in order to clear the balance.

 

I have read that its not always advisable to contact Bwlegal but I'm thinking for me this would be the best route.

 

Thank you again for the replies my mood has really lightened.

[Imanostrich]

Hi again,

 

I received another letter from Bwlegal today telling me to get in touch by the 29th of January or they will send a bankruptcy petition to court.

 

Does this mean my 18 days now goes from then or is it still as per the stat demand I received last week?

 

I had fingers and toes crossed that Barclays secured would've sent me the secured details by now so I could've looked into sorting things out. The extra time if my 18 days does go from the 29th of January or is it still from when I received my hand delivered stat demand?

 

Again any help is greatly appreciated.

[Northernpug]

The 18 days are from when the SD was served on you so you need to get your papers submitted to court by the 26th January. If you don't get it set aside by then they are saying that they will file the papers with the court for the bankruptcy petition on the 29th January.

[FitForPurpose]

As per the above post, this doesn't affect the time limit so you should apply for the statutory demand to be set aside. Your reason to have the demand set aside is that you beleive the debt is the result of an error by the original creditor and you are still awaiting details from them in order to understand the situation. Once those details have been adequately provided, you believe that either the debt will be cancelled or that you will have the means to settle it. Either way, bankruptcy action is inappropriate and in the light of your dispute about the entire debt, proceeding with bankrutcy action would be an abuse of process.

 

Include references to your previous requests for information along with copies of any sar and cca requests you have made.

 

You could respond in writing to the letter you received pointing out the above also.

 

Ffp.

[Northernpug]

Sorry, I misread your post. The Petition can be filed with court 21 days after the SD is served. As the SD was served on the 8th January, they are saying that they will file papers on or after the 29th which is 21days from when the SD was served if they don't hear from you.

 

The 18 day limit from the 8th still applies. 26th is a Saturday so your deadline is 25th January.

 

I wouldn't rely on getting the information from Barclays before the 18 days expires. Download the forms and start on your defence now on the basis that you haven't received the information yet. If you do receive it, you can amend it but if not, you will be ready to send the papers to court.

[Imanostrich]

Yep again thank you folks,

 

I haven't received anything from Barclays and its now been 8 days. I will request the debt be set aside now ASAP and hopefully buy enough time for Barclays to get things done (like I say hope!)

 

Thanks again & best regards

[Imanostrich]

Hi again,

 

Sorry to be a pain but some advice would be very welcomed right now.

 

I was fully confident I could get some information from Barclays/Barclaycard but have turned up nothing.

 

Barclays did get me a sheet showing that I did receive a payment for Barclaycard but say they cannot tell me that the cheque was ever cashed and if so where it went.

 

Barclaycard told me that they could not give me any written information at all as the debt has been sold to Lowell. They assistant I spoke to did tell me my balance in May was the same as the amount that Barclays issued a cheque for. I had through this time been paying the minimum payment by direct debit. She would not tell me if I had made a payment at the time I would have used my cheque from Barclay. My balance however is now twice that of the payment that I would've paid off with Barclays loan.

 

I spoke with someone from Lowell who again could not give me any information as I'd need to speak with BWLegal. I emailed them on friday (as I'm now worried that all I have is my word that I made phone calls and that Barclaycard assistant said she would put a note on file that I made contact) but BWLegal wont issue any information until I speak with them directly to clear their security checks) even though they know the timescales and the fact that I have told them that I am trying to trace a payment.

 

My problem is this.

 

I'm not sure I have any evidence to dispute the Statutory demand. I have no idea whether the amount i received from barclays was paid against my barclaycard account and no idea what to do if it was!?

Why is the only people who can help me the people who want to make me Bankrupt (BWLegal)?

My SD was served 8th January so I have only until this Friday (25th Jan) to apply to have the debt set aside and I have no idea how to do this.

 

I have downloaded 2 x pdf (6.4 and 6.5) from CAG but do I make an appointment with the court? or do I just call in with the forms? Will the forms be considered before Friday? and what happens if my Set aside is rejected? do I get made bankrupt on the 29th of January when BWLegal will send a petition to the court and is it a foregone conclusion?

 

We have been on the breadline for the last few years after I took a decision to take a lower paid job rather than redundancy and with 3 kids I'm not sure whether BWLegal will accept the only monthly installemnst I could afford instead choosing bankruptcy.

 

I have already got 2 x CCJ's which I pay back at £10 per month for the next 40 years due to our financial position.

 

And finally have I run out of time as it seems that I need to give the people who hold my information at least14 days to issue statements.

 

Any help again would be greatly appreciated and I'm sorry to have gone on so much.

[FitForPurpose]

Hello,

 

I think you do have grounds to have the SD set aside. There seems to be enough doubt as to whether this "debt" is purely the result of a clerical error.

 

Is this correct; you said you had been provided with a list of cheque values from Barclays and one of them matched exactly the balance that was due to Barclay Card to clear any outstanding amount at that time. The remainder of the alleged debt consists only of charges that would not have been applied if the debt had been settled as you believed it had been?

 

If that is correct, I would ask for the SD to be set aside on the grounds that you believe the debt was settled and that all other charges are therefore erroneous. If it was not settled, then this was as a result of a clerical error on behalf of the original creditor and the bankruptcy process is not the correct process to solve that error. Ideally you would show the list of cheques from Barclays and a statement from Barclay Card at the time which shows why you think this. When you are defending against bankruptcy, you only need to show that there is a substantial dispute to have a demand set aside or a bankruptcy petition dismissed. You don't need to win that dispute at this stage. So concentrate on showing why there is considerable doubt about this claim, rather than trying to prove that you are right, if that makes any sense? It helps that neither Barclays, Barclaycard Lowells or BWLegal seem to be able / want to clear up any confusion.

 

You SHOULD apply for the demand to be set aside. However if you don't, bankruptcy is not automatic. The creditor would have a right (but not an obligation) to file a petition for your bankruptcy, which you could still later contest. However, having a demand set aside could be achieved in days/ weeks but a bankruptcy petition could roll on for months, so setting aside the SD is the better option.

 

FFP

[Imanostrich]

Thanks again FFP for taking the time to reply,

 

The assistant at Barclaycard told me that the balance due in May when I set up my min. payment DD was the same as the value that I arranged with Barclays to clear the card in July/August.

 

Because I have no statement from that time I cant be sure as to whether I used the card anytime thereafter (the account at Lowells is twice that of the amount I should've cleared in a 2 year period and I'm not 100% sure this was purely costs as its seems ridiculous that I could've doubled the debt in this short time.)

 

After emailing BWLegal services on Friday and being told that they would only deal with me once I had cleared their security checks I'm about to ring them although I'm uneasy about ringing them as they are the ones wanting to make me bankrupt.

 

Once I have the statement from that time I'll be far better placed to decide what to do but I have no time to get this information.

 

I will head to court today to see if I can speak to someone who can tell me what happens with the application to Set-Aside the debt.

 

Big THANKS AGAIN, really really appreciated.

[FitForPurpose]

Hello,

 

Honestly I wouldn't speak to them on the phone. If they truly don't know who you are, they can't use the bankruptcy process as they can't be sure who they are dealing with. It is almost certainly a ruse to use the telephone to pressure you or to gain information by methods that they would not like recorded in writing. I presume that you emailed BWLegal as a result of receiving a letter. Therefore, you have proved who you are because you have received that letter and have referred to it in your email.

 

One tactic when writing to these types of companies is to write your letter thinking about how it will read in front of a judge. You want to take the moral high ground and show that you are trying to do the right thing.

 

I think if I were you, I would now spend a couple of hours writing out why you dispute the debt entirely. The reason is that you believe the debt was settled because you took out a secured loan to consolidate your debts and you can show that one of the cheques issued from that loan went to Barclay Card (the original creditor) and that you have been told by Barclay Card over the phone that the amount of this cheque matched the balance of your account at that time. It now needs to be investigated if Barclay Card cashed that cheque or not, and if not, why not and what happened to the secured funds otherwise. Barclays, Barclaycard, Lowells and BWLegal have not assisted in getting to the bottom of this dispute and so now you await the result of a subject access request under the Data Protection Act to receive your account statements. This cannot be done within the time limit set by a statutory demand and in any case since the entire debt is disputed on substantial grounds, the creditor is aware that proceeding with bankruptcy action would be an abuse of process.

 

The key thing is you need to be seen to be actively disputing this. Just asking for the demand to be set aside without doing anything about the claim would be a bit weak. So once you draft the above, send it to BWLegal so you can show a registrar that your creditor is aware they are pursuing a disputed debt. Make sure you send off those Subject Access Requests to both Barclays and Barclaycard so you can get the entire history of your accounts. Then apply for your SD to be set aside referring to all the above actions.

 

Don't be afraid of the court. My experience when taking on a top London law firm who tried to make me bankruptcy over a falsified debt was that the courts exercise a duty of care to the litigant in person, and that they don't make a person bankrupt lightly if the debt is sincerely disputed.

 

 

FFP

[Imanostrich]

Thanks yet again FFP,

 

I rang BWLegal before i read you reply. Spoke to an account manager who insisted that I had to give him my current telephone number, name of employer, DOB etc before he would look at my file.

 

He told me that he had read my email of friday asking for information but until I actually made contact he would be unable to obtain the information I needed. He then went on to confirm what I had put into my email, said that he would get the information I needed then ring me one night after he'd reviewed my account before the information could then be emailed to me.

 

This all sounded wrong as surely its not up to BWLegal to decide what action they are to take with me upon getting the information I had requested. He finished by saying in the meantime my account would be placed on hold 'awaiting further information'.

 

I have typed up what I believe to be the basis of my dispute in that I received a cheque and to the best of my knowledge at present I could not prove that my consolidation loan was used to pay off my barclaycard.

 

I have also written two letters this evening which I will post recorded delivery in the morning to both Barclaycard and Barclays Secured to try and find out what happened to the cheque. If indeed it was paid off my account and I'd somehow managed to then double my original balance in the year after then I will hold my hands up and attempt to come to an agreement with BWLegal, but I'm almost certain that this was not the case.

 

Can you FFP or anyone else confirm that the application to set-aside just needs to be handed into the Court within my 18 days or whether I need to arrange a meeting with a magistrate before the 18th day?

 

Big Thanks again.

[FitForPurpose]

Hello,

 

I don't believe you will need to make an appointment, but you will need to see a court official to swear an oath of truth regarding your affidavit. You can also do the swearing with any solicitor, but they will charge a few quid for it and the court is free I think. Perhaps someone else can confirm this as in my case, I didn't have my SD set aside because I didn't think I could at the time (and then spent the next year going through various hearings until I won, which is why I recommended above that you should get your SD set aside!)

 

Be bullish with your defence. You are right and they are wrong. This way you will strongly show you dispute the claim and this is what you need help the registrar decide that bankruptcy action is inappropriate.

 

Regarding your phone call, thank you for posting the details. Clearly, no one can confirm someones identity by asking for their employer and their telephone number. This is probably just information they would like to use to harass you in the future. Hopefully they will - as it can be quite profitable ;-)

 

FFP

[Northernpug]

There is another thread somewhere (can't find it at the moment) concerning setting aside a SD that confirms you don't need to do an Affidavit. You can submit the forms by post to the court if you want provided they arrive within the deadline. I would suggest allowing a bit of extra time so that if there are any queries on your forms and they are not accepted by the court, you have time to correct them and resubmit.

 

Don't forget to include a copy of the SD with your submission. You will need to complete forms 6.4 & 6.5 which is available from http://www.bis.gov.uk/insolvency/About-us/forms/england-and-wales

 

When the court receives the forms they will be put before a judge who will either set aside or set a date for a hearing. Don't worry if a date is set for a hearing, it doesn't mean that it won't get set aside but the judge wants to discuss further before making a decision.

 

With regards to your telephone conversation, the only information you need to give before speaking with BW Legal is your name and answer a couple of relevant questions to confirm you are who you say you are such as date of birth and current address (needed to comply with DPA). Other questions such as employers phone number. mobile number etc that is irrelevant to confirming your identity, you don't have to answer.

Edited January 22, 2013 by Northernpug

[Imanostrich]

Thanks again Northernpug and FFP for taking time to reply,

 

I'll be posting my way through this experience irrespective of the outcome so hopefully someone else may benefit from it.

 

At this moment in time I have not heard anything back from BWLegal who said they would contact me when they received information from Barclaycard.

 

I don't understand their side of things but surely in this modern age they should already have a copy of my account history so will know whether or not my loan cheque was ever posted to my account? if they don't have this information then again can it really take more than a few clicks to have Barclaycard copy my statement into a pdf and email it to them?

 

I would love the confidence to say that BWLegal are bluffing and that for the amount that they purchased the debt for, less the cost of making me bankrupt I'm not worthwhile but I cant be sure.

 

The only thing I am sure about is that I have until Friday to apply to the court to have the Stat Demand set-aside. So taking FFP's advice I have indeed listed the reason why the debt should be set aside (not a very long list as the only reason I have is that I believe I cleared the account so the amount they are pursuing is wrong) and will be attending court tomorrow to submit forms 6.04 and 6.05.

 

I am a bit concerned that the court will then set a hearing date and BWLegal will prove that the amount was indeed paid off the account but I used the card again to accrue the balance owed but this to me seems almost impossible. I also don't know for sure whether the amount was not paid off the account but I still used my card so maybe I owe some of the balance but not all.

 

So I'm also worried that I may have forced BWLegal's hand and they have to then follow through with bankruptcy proceedings when ordinarily they may have just resorted to harassing me by letter and phone.

 

But this whole thing has placed a fair bit of stress on me so I might just be being irrational as I genuinely have no idea what happened in 2007.

 

So I'll post up what happens at the court tomorrow when I submit my application to set aside and my witness statement.

 

Thanks again folks.

[paulwlton]

Have you ever received default notice for this?

[Imanostrich]

Have you ever received default notice for this?

 

Hi paulwlton,

 

I received letters from lowells and others over the last few years so I must assume I did.

[paulwlton]

Hi paulwlton,

 

I received letters from lowells and others over the last few years so I must assume I did.

 

Under cca they must give you time to rectify the default before taking the next step to enforce. It could be argued they haven't followed procedure set down in the cca regs and are therefore circumventing statute.

Are there lots of penalty charges on the account?

Did you receive notice of assignment?

Edited January 24, 2013 by paulwlton

[Imanostrich]

OK,

 

Just checked,

 

Received a letter from Barclay card in December 08 to say that they will instruct mercers to issue a default notice in accordance with their rights etc.

 

Mercers Issued an Immediate action needed letter that threatened a local debt collector to call at my home. This never happened.

 

I'm about to head to County Court with the thought of 'so what if I loose the set-aside and am found owing the full amount somehow' An extra £1000 of costs will just have to be added to the outstanding balance and cross my fingers the court can come up with a repayment plan. I already have 2 CCJ's that get paid at £10 per month and I'll have to live into my hundreds before they are cleared.

 

The worry for me is the court see that I cannot afford monthly repayments and put me up for bankruptcy as a solution. Can they sell the home if the wife is on the mortgage though for my own unsecured debt?

 

Thanks again.

[DonkeyB]

Blimey, another Lowells stat demand... I’m spotting a trend here...

[42man]

Please do read this thread too - http://www.consumeractiongroup.co.uk/forum/showthread.php?379550-Help-!!!!!-I-have-been-served-a-statutory-demand&p=4116775#post4116775