Received a Statutory demand today today under section 268(1)(a). old IG Index spread-betting Debt

[The Mould]

Thank you UncleB will do.

 

Thank you so much Mould for this detailed reply.

 

This debt was with a spreadbetting company in 2008.

 

The original debt (£10,712) remained the same all the time.

 

The letter requesting £10,712 received in June 2012 was the first correspondence since 2009.

 

The reason I have requested a CCA is that in the Stat demand they have added this line in ...

 

Interest has accrued on the sum of £10,712.89 at the rate of 4% above base rate in accordance with Term 15 of the Creditor's Customer Agreement entered into between the creditor and the debtor from 16 March 2008 to the date thereof in the sum of £2,938.29)

 

I do not know anything about this agreement and it has just been sprung on me in the Stat demand.

 

Are all your points on this still valid basis the facts above?

 

Yes,

 

As creditor states CCA, then provisions of the Act apply.

 

Kind regards

 

The Mould

[Shree420]

Also how can I SOS 42man.

 

I could really do with his help by the sounds of things to ensure I get the SET ASIDE right.

 

Many thanks in advance

[Shree420]

Awesome The Mould. You are a superstar!

 

I will just wait for 42Man and then hopefully get the forms filled in and handed to court on Friday to have this SET ASIDE

[The Mould]

Also how can I SOS 42man.

 

I could really do with his help by the sounds of things to ensure I get the SET ASIDE right.

 

Many thanks in advance

 

Click on the triangle at bottom of your posts and ask Site Team to alert 42Man to your thread.

 

Further to the above, clink the link in my#23 above and read the whole SD case there, you will find very useful info which will help you to file your Defence against the SD served on you.

 

Kind regards

 

The Mould

[Shree420]

By the way, what amount did you offer to repay monthly?

 

As the creditor has not replied to your offer, I would strongly advise you to re-send your offer by Special Delivery Royal Mail by 1 pm, BUT, make your offer to repay monthly and state in your letter that this offer is made without any admission of liability to the amount claimed and supersedes all and any offers made by you in respect of this account. (very important that you amend your letter to state this) and is subject to them producing a valid CCA pursuant to your CCA Request dated (put date).

Kind regards

 

The Mould

 

£100 per month. That is the absolute maximum I can afford (and thats with my wife's help)

 

Oops too late. I sent the letter again today recorded delivery but without your wording re: admission of liability etc. I mentioned in that letter that they have a separate letter for the CCA request also and enclosed £1 fee for that.

[The Mould]

£100 per month. That is the absolute maximum I can afford (and thats with my wife's help)

 

Oops too late. I sent the letter again today recorded delivery but without your wording re: admission of liability etc. I mentioned in that letter that they have a separate letter for the CCA request also and enclosed £1 fee for that.

 

Not too late at all, as they will have to accept your said offer in writing in order to form and conclude a legally binding contract between you to parties. Simply amend your very reasonable offer of £100 per month and include the all important wording in your new offer letter as set out in my #25. Send by Special Del again.

 

Kind regards

 

The Mould

[Shree420]

You are too kind The Mould. Started reading that thread. I am upto Post 71.

 

I am sure I will need help on the exact wording of my reasons for SETTING ASIDE as your brilliant link to that thread above is about "statute barred" reasons for SETTING ASIDE.

 

I think it will be basis this:

 

I am disputing the debt they are asking (ie. where the interest has come from)

I have asked them for a CCA and no reply yet.

I have made an offer to pay the debt off but no reply yet.

 

 

However your legal point must carry the most weight:

 

"Did you receive a valid statutory default notice pursuant tos.87(1) of the CCA 1974 (as amended) (“the Act”) , from your creditor? If no such valid notice has been served onyou prior to these SD proceedings, then the creditor cannot proceed with thisaction against you as he is not entitled by virtue of his failure (potentialfailure at present, until you confirmthis particular area of this matter) to comply with the statutory provisions ofsaid s.87(1) of the Act. This isestablished law and sufficient grounds on its own to set asideicon SD. Research s.87(1) of the Act."

 

Just not sure how to word that for the Stat demand. Mainly through my failure to understand the exact law.

 

Thank you all of you.

[The Mould]

You are too kind The Mould. Started reading that thread. I am upto Post 71.

 

I am sure I will need help on the exact wording of my reasons for SETTING ASIDE as your brilliant link to that thread above is about "statute barred" reasons for SETTING ASIDE.

 

I think it will be basis this:

 

I am disputing the debt they are asking (ie. where the interest has come from)

I have asked them for a CCA and no reply yet.

I have made an offer to pay the debt off but no reply yet.

 

 

However your legal point must carry the most weight:

 

"Did you receive a valid statutory default notice pursuant tos.87(1) of the CCA 1974 (as amended) (“the Act”) , from your creditor? If no such valid notice has been served onyou prior to these SD proceedings, then the creditor cannot proceed with thisaction against you as he is not entitled by virtue of his failure (potentialfailure at present, until you confirmthis particular area of this matter) to comply with the statutory provisions ofsaid s.87(1) of the Act. This isestablished law and sufficient grounds on its own to set asideicon SD. Research s.87(1) of the Act."

 

Just not sure how to word that for the Stat demand. Mainly through my failure to understand the exact law.

 

Thank you all of you.

Further important info for you on this matter.

268 Definition of “inability to pay”, etc.; the statutorydemand.E+W

(1)For the purposes of section 267(2)©, thedebtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either— (myemphasis added here. As this is acreditor – debtor relationship the CCA 1974 (as amended) applies and in orderfor your creditor to become entitled to the full amount of debt he claims, hemust first serve upon you a valid statutory default notice pursuant to s.87(1)of said CCA Act 1974. It would appearthat your creditor has not complied with his statutory duty in this respect andhe is not, therefore, entitled to this SD enforcement action because the debtclaimed is not payable immediately as prescribed by the language of 268(1)(above))

(a)the petitioning creditor to whom the debt isowed has served on the debtor a demand (known as “the statutory demand”) in theprescribed form requiring him to pay the debt or to secure or compound for itto the satisfaction of the creditor, at least 3 weeks have elapsed since thedemand was served and the demand has been neither complied with nor set asidein accordance with the rules

271 Proceedings on creditor’s petition.E+W

(1)The court shall not make a bankruptcy order on acreditor’s petition unless it is satisfied that the debt, or one of the debts,in respect of which the petition was presented is either—

(a)a debt which, having been payable at the date ofthe petition or having since become payable, has been neither paid nor securedor compounded for, or

(b)a debt which the debtor has no reasonableprospect of being able to pay when it falls due.

(2)In a case in which the petition contains such astatement as is required by section 270, the court shall not make a bankruptcyorder until at least 3 weeks have elapsed since the service of any statutorydemand under section 268.

(3)The courtmay dismiss the petition if it is satisfied that the debtor is able to pay allhis debts or is satisfied—

(a)that the debtorhas made an offer to secure or compound for a debt in respect of which thepetition is presented,

(b)that theacceptance of that offer would have required the dismissal of the petition, and

©that the offerhas been unreasonably refused; (my emphasis added for this part as regardsyour very reasonable offer)

and, in determining for the purposes of thissubsection whether the debtor is able to pay all his debts, the court shalltake into account his contingent and prospective liabilities.

(4)In determining for the purposes of this sectionwhat constitutes a reasonable prospect that a debtor will be able to pay a debtwhen it falls due, it is to be assumed that the prospect given by the facts andother matters known to the creditor at the time he entered into the transactionresulting in the debt was a reasonable prospect.

(5)Nothing in sections 267 to 271 prejudices thepower of the court, in accordance with the rules, to authorise a creditor’spetition to be amended by the omission of any creditor or debt and to beproceeded with as if things done for the purposes of those sections had beendone only by or in relation to the remaining creditors or debts.

Kind regards

The Mould

[AndyOrch]

Site Team aware of your request shree and will mark for 42mans attention.

 

Regards

 

Andy

[The Mould]

http://www.consumeractiongroup.co.uk/forum/showthread.php?378142-Lowell-Statutory-Demand-help!!-***-WON-COSTS-***/page2

Have a proper read of above SD case also.

Kind regards

The Mould

[Gaston Grimsdyke]

This CCA stuff is all irrelevant because gambling debts are not regulated agreements. No credit has been given so the CCA doesn't apply.

[Shree420]

Thank you so much for the above threads THE MOULD. You have been a Godsend with the rest of the great guys here.

 

As I see it, with all your great help guys, I see 4 points for the Set Aside:

 

a) CCA requested but not yet given/arrived/complied with

b) Offered a very reasonable £100 per month to clear this debt

c) Disputing the amount as at no stage was I told the debt is 10,712 + interest until I received a stat demand

d) Not gone through proper channel. They should have applied for a CCJ and not gone straight for bankruptcy

e) No default notice received whatsoever prior to the stat demand.

 

I am not sure about (d) as I picked that up from other threads here (Lovells etc.)

 

Also do I mention (e) at this stage or at a petition as does that not let them just send a stat demand now or if this is SET ASIDE then send a stat demand?

 

Is this what i should base the set aside on (using much better and clearer wording) or are there other points to mention in the SET ASIDE forms?

[Shree420]

This CCA stuff is all irrelevant because gambling debts are not regulated agreements. No credit has been given so the CCA doesn't apply.

 

THE MOULD made a very valid point on this in #26. They quoted me the CCA with regards to charging interest and backdating interest in the stat demand. Their letter and all correspondence never quoted any interest and always a total amount of just 10,712.

[sequenci]

THE MOULD made a very valid point on this in #26. They quoted me the CCA with regards to charging interest and backdating interest in the stat demand. Their letter and all correspondence never quoted any interest and always a total amount of just 10,712.

 

Customer's Credit Agreement or Consumer Credit Act 1974?

[The Mould]

The Claimant clearly states in his POCs that he is acreditor and that Shree is a debtor. TheClaimant also mentions Creditor’s Customer Agreement, therefore, I took this tomean that CCA 1974 (as amended) must be applicable, however, I admit that Icould be wrong as my advice posted here has been based on CCA and if I am, then Shree’s saving grace will bethe fact that he has made a very reasonable offer to repay the debt at £100 permonth and that he disputes the amount claimed.

Shree, do you have a copy of the “Creditor’s CustomerAgreement”? If yes, can you scan it inand post up minus personal details.

Kind regards

The Mould

[sequenci]

I think it's a big ask. £100 per month on a debt which was due in 2009 - with few payments made since then. The judge may take some serious persuading. If they do move to grant the order then look to offer a voluntary charge as a last resort.

[The Mould]

Shree,

Was there a delayon the part of the creditor to recover this debt? If yes, you may have grounds to seek Orderfrom Court discharging you of the debt, because, any delay in recovery of saiddebt would mean that the creditor had in effect given you credit, which isillegal under the Gaming Act.

There is a Courtof Appeal authority on the above.

Kind regards

The Mould

[The Mould]

Shree,

Was there a delayon the part of the creditor to recover this debt? If yes, you may have grounds to seek Orderfrom Court discharging you of the debt, because, any delay in recovery of saiddebt would mean that the creditor had in effect given you credit, which isillegal under the Gaming Act.

There is a Courtof Appeal authority on the above.

Kind regards

The Mould

I built up a debt with IG Index back in 2008. This was built up through a spread betting account I held with them.

 

I did pay a few payments of £50 or so back in 2009 as that is all I could afford.

 

After that I heard nothing from them.

 

On 12/06/2013 I received a letter from their solicitors saying that the balance of £10,712.89 is due immediately. They wanted payment within 7 days or they threatened immediate proceedings against myself.

 

Based on your post (above), I would argue that their delay to recover the debt does in effect amount to credit being given you, which, as I have said above, is illegal under the Gaming Act.

 

Kind regards

 

The Mould

[Shree420]

The Claimant clearly states in his POCs that he is acreditor and that Shree is a debtor. TheClaimant also mentions Creditor’s Customer Agreement, therefore, I took this tomean that CCA 1974 (as amended) must be applicable, however, I admit that Icould be wrong as my advice posted here has been based on CCA and if I am, then Shree’s saving grace will bethe fact that he has made a very reasonable offer to repay the debt at £100 permonth and that he disputes the amount claimed.

Shree, do you have a copy of the “Creditor’s CustomerAgreement”? If yes, can you scan it inand post up minus personal details.

Kind regards

The Mould

 

 

"Interest on has accrued on the sum of £10,712.89 at the rate of 4% above base rate in accordance with Term 15 of the Creditor's Customer Agreement entered into between the creditor and the debtor from 16 March 2008 to the date thereof in the sum of £2,938.29)"

 

This was the line they added to the Statutory demand, so they used "Creditor's Customer Agreement" and I asked for a CCA basis that.

 

It has not arrived yet so sadly I do not have it and was not aware I have signed one.

[Shree420]

Indeed there was no request made whatsoever Mould on this debt between late 2008/ early 2009 and 2013.

 

Not one letter, phone call etc.

 

First I have heard form them since 2008/2009 was 12/06/2013 in which a solicitor wrote to me telling me that they had been instructed by IG Index to recover this debt.

[The Mould]

Indeed there was no request made whatsoever Mould on this debt between late 2008/ early 2009 and 2013.

 

Not one letter, phone call etc.

 

First I have heard form them since 2008/2009 was 12/06/2013 in which a solicitor wrote to me telling me that they had been instructed by IG Index to recover this debt.

http://www.bailii.org/ew/cases/EWCA/Civ/2007/1001.html

 

Then I suggest that you click the link above to Court of Appeal authority as regards the matters I referred to in my #42. Print this authority off and read it thoroughly tonight! (time is of the essence for you to file your Defence to SD).

 

If you can show the lower County Court that there was a delay in recovery of said debt by the creditor, then you can rely upon Court of Appeal authority (lower Courts are bound by this judgment) and defeat the SD.

 

If creditor commences proceedings for enforcement by way of CPR Pt 7 process, you can then rely upon said COA judgment and request strike out of claim.

 

Kind regards

 

The Mould

[The Mould]

Shree

 

In the light of the above Court of Appeal authority, which wrote of the debtor's debt of £2m, you ought to withdraw your offer asap - by email or fax if you have the creditor'/his sols details.

 

Kind regards

 

The Mould

[nicklea]

http://www.bailii.org/ew/cases/EWCA/Civ/2007/1001.html

 

Then I suggest that you click the link above to Court of Appeal authority as regards the matters I referred to in my #42. Print this authority off and read it thoroughly tonight! (time is of the essence for you to file your Defence to SD).

 

If you can show the lower County Court that there was a delay in recovery of said debt by the creditor, then you can rely upon Court of Appeal authority (lower Courts are bound by this judgment) and defeat the SD.

 

If creditor commences proceedings for enforcement by way of CPR Pt 7 process, you can then rely upon said COA judgment and request strike out of claim.

 

Kind regards

 

The Mould

 

 

This guy really can be quite dangerous if you listen to his advice.

 

A couple of things that he's got wrong:-

 

1. The above case refers to the Gaming Act 1968 which was repealed by the Gambling Act 2005. Although, the new Act does contain similar provisions to the previous act with regards to granting of credit.

 

2. However, the big difference with the 2005 Act was Section 10:-

 

(1) For the purposes of section 9(1) “bet” does not include a bet the making or accepting of which is a regulated activity within the meaning of section 22 of the Financial Services and Markets Act 2000 (c. 8).

 

What this means is that since spread-betting it is a type of Contract For Difference then, unlike other forms of betting, it is recognised as an investment under the Financial Services and Markets Act 2000 and so the Gambling Act does not apply.

 

I would strongly suggest that you would be wasting your time if you were to try and rely on this case.

[The Mould]

This guy really can be quite dangerous if you listen to his advice.

 

A couple of things that he's got wrong:-

 

1. The above case refers to the Gaming Act 1968 which was repealed by the Gambling Act 2005. Although, the new Act does contain similar provisions to the previous act with regards to granting of credit.

 

2. However, the big difference with the 2005 Act was Section 10:-

 

(1) For the purposes of section 9(1) “bet” does not include a bet the making or accepting of which is a regulated activity within the meaning of section 22 of the Financial Services and Markets Act 2000 (c. 8).

 

What this means is that since spread-betting it is a type of Contract For Difference then, unlike other forms of betting, it is recognised as an investment under the Financial Services and Markets Act 2000 and so the Gambling Act does not apply.

 

I would strongly suggest that you would be wasting your time if you were to try and rely on this case.

 

The COA authority cited here by me was handed down in 2007,two years after the amendments that you refer to in your post.

My advice is not dangerous, I would suggest that you clickon the link to the Court of Appeal authority above and peruse the entire casetranscript thereof.

Kind regards

The Mould

[Gaston Grimsdyke]

The judgment might have been handed down in 2007, but dealt with events in 2000 so was decided on the old law.

 

It is a spectacularly bad idea to try and get a statutory demand set aside on the grounds that you want to pay by instalments. What you are in fact doing is proving that you are indeed insolvent, because you cannot discharge your debt immediately. That actually increases your prospects of being made bankrupt. Also, disputing the interest will get you nowhere. Provided you owe more than £750, the court will not care whether the debt is £751 or £10,000. The court will make a bankruptcy order and leave it to the trustee to decide exactly how much you owe, and as you admit owing 10K plus you've got nowhere to go with an application to set aside the demand. There is no need for a CCJ to exist before issuing a bankruptcy petition.

 

I doubt very much the creditor wants to make you bankrupt, and that the real reason for serving the stat demand was to force your head above the parapet, so it's mission accomplished there. I am sure they will consider reasonable instalment proposals so I suggest you call the person named as the contact on the demand and sound them out about paying by instalments. Don't waste time because if they issue a bankruptcy petition, unless you can pay the whole debt off the court will have to make a bankruptcy order and you will likely lose your house eventually.