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

[The Mould]

Yes, I apologise for any confusion I may have caused asregards the COA authority I posted here, you are quite right that case wasdecided on old law.

It is very easy for people to criticise any of my posts herewith such harsh words. I was (and stillam) sincerely trying to help Shree. Justremember that DJ’s and even High Court Judges make errors.

Shree, I can only then advise that you make your offer torepay at your stated £100 without any admission of liability. The Court must then decide whether anyrefusal of such payment by the creditor is just or unjust.

It first appeared that your case was governed under theprovisions of CCA 1974 (as amended), however, this is clearly not the case.

I still believe that you should question/challenge thesudden appearance of the interest and the reason as to why the creditor hasdelayed for 4 years (or more) in bringing this action.

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

 

Thank you again everyone so far.

 

THE MOULD .... Please do not feel bad. I am eternally grateful for you taking so much of your time and trying your very best to help.

 

All information is useful. I will need to recap where we are up to. I take it you are saying that the CCA (Creditor's Customer Agreement) request may n ow be meaningless.

 

SHould I still SET ASIDE this or just leave it to a petition?

[Shree420]

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.

 

Thank you so much Gaston.Are you saying absolutely no point in setting this aside.

 

Do you suggest I just let them go for the petition and then deal with my case then with the judge direct?

 

Is that not highly dangerous?

 

Sorry for so many questions, but my time limit to SET ASIDE is fast running out

 

Thanks in advance

[The Mould]

Thank you so much Gaston.Are you saying absolutely no point in setting this aside.

 

Do you suggest I just let them go for the petition and then deal with my case then with the judge direct?

 

Is that not highly dangerous?

 

Sorry for so many questions, but my time limit to SET ASIDE is fast running out

 

Thanks in advance

 

Shree

Thank you for your kind words and I apologise again for thecouple of mistakes I made in posting here for your case.

Yes, the CCA 1974 (as amended) does not apply,unfortunately. (I would add that all matters raised by me in respect of the CCA1974 are wholly factually correct in law)

You should stillfile your Defence to the Court against this SD, and argue that you havemade a reasonable offer of £100 per month, the creditor has not made any effortto recover the debt in over 4 years, has sent no correspondence to you on thesame, therefore, his petition to bankrupt you ought to be his last resort inorder to recover the debt and that the Court should not be his first port ofcall with this SD. That’s my opinion andis what I would do as there appears to be no other options/grounds for a setaside motion.

Kind regards

The Mould

[The Mould]

Shree

 

If you have the sols or creditor's email details, request their response to your £100 repayment offer by return and state in your email (or fax for that matter) that you reserve your right to disclose the contents herein to the Court in the event of no response to my reasonable offer to repay the debt claimed, notwithstanding the foregoing, I dispute the amount claimed and my offer to repay this debt at a rate of £100 per calendar month is made without any admission to the same.

 

Kind regards

 

The Mould

[The Mould]

Shree,

 

Can you respond to my earlier post (above) as I am concerned for you on this matter.

 

I express my gratitude to you in advance.

 

Kind regards

 

The Mould

[Gaston Grimsdyke]

Thank you so much Gaston.Are you saying absolutely no point in setting this aside.

 

Do you suggest I just let them go for the petition and then deal with my case then with the judge direct?

 

Is that not highly dangerous?

 

Sorry for so many questions, but my time limit to SET ASIDE is fast running out

 

Thanks in advance

 

Yes, I am saying you should not waste your time with an application to set aside the stat demand.

 

If you

a) admit you owe a sum in excess of £750 and

b) can't pay it off in full immediately,

 

then you are insolvent and the court would have to make a bankruptcy order if a petition was issued.

 

A bankruptcy court cannot make an instalment order, you can either pay the entire debt immediately or you can't.

 

I do not, however, suggest you let them go for a petition.

That is the worst thing that can happen, because at the hearing the judge will ask you if you can pay the full debt immediately,

and if you say "no" you will be made bankrupt with horrendous consequences.

 

Do not fall into the trap of thinking you can make an offer of instalment payments at a bankruptcy hearing

 

.Your best bet is to communicate with the creditor and try and get them to agree to an instalment arrangement

- I can't believe they want to make you bankrupt, but they probably will if you do nothing.

[The Mould]

Yes, I am saying you should not waste your time with an application to set aside the stat demand.

 

If you

a) admit you owe a sum in excess of £750 and

b) can't pay it off in full immediately,

 

then you are insolvent and the court would have to make a bankruptcy order if a petition was issued.

 

A bankruptcy court cannot make an instalment order, you can either pay the entire debt immediately or you can't.

 

I do not, however, suggest you let them go for a petition.

That is the worst thing that can happen, because at the hearing the judge will ask you if you can pay the full debt immediately,

and if you say "no" you will be made bankrupt with horrendous consequences.

 

Do not fall into the trap of thinking you can make an offer of instalment payments at a bankruptcy hearing

 

.Your best bet is to communicate with the creditor and try and get them to agree to an instalment arrangement

- I can't believe they want to make you bankrupt, but they probably will if you do nothing.

 

Shree has already made contact with the creditor/hissols and made a reasonable offer to repay the debt at a rate of £100 permonth. To my knowledge, as of the datehereof, Shree has not received any response to the same. Giventhat the creditor has not taken any action to recover this debt in over 4 yearsand that Shree has made his said offer to repay, I believe that the Court mightset aside the SD based on those facts under s.271(3) of the act

“271 Proceedings oncreditor’s petition, in particular 271(3) (below)

(3)The court maydismiss the petition if it is satisfied that the debtor is able to pay all hisdebts or is satisfied—

(a)that the debtor has made an offer tosecure or compound for a debt in respect of which the petition is presented,

(b)that the acceptance of that offer wouldhave required the dismissal of the petition, and

©that the offer has been unreasonablyrefused;” (my emphasis added for thispart as regards your very reasonable offer)

Kind regards

The Mould

Edited August 17, 2013 by ims21

[The Mould]

Shree

 

Do you jointly own your home with your wife and is this debt in your name only? If yes, then if the creditor proceeds with bankruptcy proceedings against you, you will not lose your home.

 

Kind regards

 

The Mould

[Shree420]

Gaston ... Surely it is worth trying to set aside. One has nothing to lose by trying?

 

Provisional grounds are as follows ...

 

a) Creditors only just contacted me after 4 years and not really tried discussing this debt with me, instead just going straight for a bankruptcy petition.

 

b) Amount is disputed as there is suddenly an amount of backdated interested added to debt. Requested the CCA that they refer to in their comments on the stat demand. Awaiting this CCA.

 

c) Have offered a reasonable amount to try and clear this debt as best I can and am in negotiations with the creditor.

[Shree420]

Shree

 

Do you jointly own your home with your wife and is this debt in your name only? If yes, then if the creditor proceeds with bankruptcy proceedings against you, you will not lose your home.

 

Kind regards

 

The Mould

 

Its a total pain for me. House is in my name only and debt is in my name only.

 

However wife has been here since we got married in 1993 and children have been here since birth.

[Shree420]

Shree

 

If you have the sols or creditor's email details, request their response to your £100 repayment offer by return and state in your email (or fax for that matter) that you reserve your right to disclose the contents herein to the Court in the event of no response to my reasonable offer to repay the debt claimed, notwithstanding the foregoing, I dispute the amount claimed and my offer to repay this debt at a rate of £100 per calendar month is made without any admission to the same.

 

Kind regards

 

The Mould

 

Thank you so much for your continued concern my friend. You are an amazing human being. Really humbled by your help.

 

Yes I got this today from them by email.

 

The "third paragraph" is re: a letter I sent them for a CCA request.

 

Not sure how this effects my "Set Aside" other than now I can say I am in "negotiations" with them to clear the debt.

 

 

We acknowledge receipt of your letter of 14th August and the cheque for £101.

We refer to the third paragraph of your letter and as we are clearly not the

creditor, but the solicitors acting on behalf of the creditor, we have forwarded your

letter to our clients for their response and instructions.

Yours faithfully

[The Mould]

Oh my dear fellow Shree,

 

I really do feel for you and your family and the upset and distress this matter is causing to you.

 

You could always follow the advice posted by Site Team member Sequenci and offer a voluntary charge on your home with the condition that no order for sale is undertaken by the creditor or any assignee, should he wish to assign any such charge, at any time and that interest is frozen.

 

Further, I see no harm in responding to SD on the grounds that I posted here earlier today. The Judge may well just apply s.271(3) and declare that the creditor's refusal of your offer to repay at £100 per month was indeed unreasonable, given that he has not taken any action to recover the debt and has made no effort to resolve this matter with you in over 4 years. His SD action should be a last resort to recover the debt. I am certain, sorry, based upon the circumstances of your case posted here, I believe that the Judge would agree with your argument that the creditor is acting unreasonably in refusing/not responding to your said offer and that he (the Judge) may well dismiss the SD for this debt in the light of your reasonable offer to repay the same and the creditor's unreasonable refusal to accept such offer.

 

You have nothing to lose and you must file your response at your local County Court to this SD. In the meantime, press the creditor/his sols for a response to your said offer.

 

Kind regards

 

The Mould

[The Mould]

Crossed posts here I think Shree,

 

Press their client for a response and state that you can show the Court that you have made a reasonable offer to repay the debt claimed, that you dispute the amount claimed and do not admit liability for the same and that their client has made no effort to take any recovery action on this matter in over 4 years and that, in the light of the foregoing, you believe that their client should only have commenced with these SD proceedings as a last resort to recover said claimed debt.

 

Refer their sols to s.271(3) of the act and state that you believe that the Court will agree with you as regards your said offer and dismiss their clients' SD under the same o the grounds that their refusal to accept your said offer, taking into account all circumstances of this matter, including their clients' serious delay to instigate recovery action, was indeed unreasonable.

 

Kind regards

 

The Mould

[The Mould]

Thank you so much for your continued concern my friend. You are an amazing human being. Really humbled by your help.

 

Yes I got this today from them by email.

 

The "third paragraph" is re: a letter I sent them for a CCA request.

 

Not sure how this effects my "Set Aside" other than now I can say I am in "negotiations" with them to clear the debt.

 

 

We acknowledge receipt of your letter of 14th August and the cheque for £101.

We refer to the third paragraph of your letter and as we are clearly not the

creditor, but the solicitors acting on behalf of the creditor, we have forwarded your

letter to our clients for their response and instructions.

Yours faithfully

 

Can you post up para 3 of your said letter please Shree.

 

Further, it is a very good thing that you enclosed a cheque payment in you said letter, which clearly demonstrates that you are committed to resolving this matter.

 

Kind regards

 

The Mould

[The Mould]

Shree

The evening is still early. You have a wife (and possibly children). Order in your favourite takeaway, get the karaoke machine out, call your family members over and have aparty of happiness with your most precious family and enjoy and embrace thehappiness that they bring you.

We are all in debt, it is natural for good natured people toworry about these debts, so don’t worryabout it, forget about these debts, you have and still are doing your very bestto cope and deal with the same.

Debt is a manmade thing that is forced upon us all underthis system of things, which is made and controlled by people who profess to bemen, take a good look at these so-called men and self-labelled leaders of thisbeautiful world, there is not one man amongst them and their greatest abilityis to destroy this beautiful garden which was created by a superior being forall of us to enjoy. There is then, no greatness to them or in them.

I am not religious Shree and I do not believe in such,because religion is manmade and no man ever made a heart.

I am certain that you are your family will survive the evilthat has invaded your lives and attempts to destroy you and separate you fromeach other. This evil can be defeated and I believe that you and your wife arestrong enough to defeat it.

Kind regards

The Mould

[Shree420]

Can you post up para 3 of your said letter please Shree.

 

Further, it is a very good thing that you enclosed a cheque payment in you said letter, which clearly demonstrates that you are committed to resolving this matter.

 

Kind regards

 

The Mould

 

 

HERE YOU GO THE MOULD

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR).

 

I am enclosing a cheque made payable to IG Index for the sum of £101.00, with this letter (£100 towards the amount owed of £10712.89) and £1 which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

I look forward to hearing from you.

 

Yours faithfully

[Shree420]

Shree

 

 

 

The evening is still early. You have a wife (and possibly children). Order in your favourite takeaway, get the karaoke machine out, call your family members over and have aparty of happiness with your most precious family and enjoy and embrace thehappiness that they bring you.

 

 

 

We are all in debt, it is natural for good natured people toworry about these debts, so don’t worryabout it, forget about these debts, you have and still are doing your very bestto cope and deal with the same.

 

 

 

Debt is a manmade thing that is forced upon us all underthis system of things, which is made and controlled by people who profess to bemen, take a good look at these so-called men and self-labelled leaders of thisbeautiful world, there is not one man amongst them and their greatest abilityis to destroy this beautiful garden which was created by a superior being forall of us to enjoy. There is then, no greatness to them or in them.

 

 

 

I am not religious Shree and I do not believe in such,because religion is manmade and no man ever made a heart.

 

 

 

I am certain that you are your family will survive the evilthat has invaded your lives and attempts to destroy you and separate you fromeach other. This evil can be defeated and I believe that you and your wife arestrong enough to defeat it.

 

 

 

Kind regards

 

 

 

The Mould

 

Wow thats a deep post and in places spiritual.

 

I myself am very religious and its faith that is getting me through this. We reap what we sow. So that is why one cannot just wallow in self pity at times like this. I got myself into this mess (due to very poor ill health) and hence now I must do whatever I can. The rest I leave in his hands. We are all destined to meet and I was destined to meet you on this path.

 

Agree with all your posts re: Debt. One only needs to research Illuminati and Rothschilds to see the past, present and future.

 

Banks are the biggest [edited] and they get away with murder. Look at Barclays and the Libor scandal. If anyone in business did that they would be jailed. However Bob Diamond got a 9 million payoff for fixing interest rates and affecting anyone who has any loan.

 

Anyway probably best not to get started on this subject.

 

I just hope I get through this and will do whatever it takes to do so for the sake of my family. Thanks again. I will apply to set it aside on Monday.

Edited August 18, 2013 by honeybee13

[Gaston Grimsdyke]

Crossed posts here I think Shree,

 

Press their client for a response and state that you can show the Court that you have made a reasonable offer to repay the debt claimed, that you dispute the amount claimed and do not admit liability for the same and that their client has made no effort to take any recovery action on this matter in over 4 years and that, in the light of the foregoing, you believe that their client should only have commenced with these SD proceedings as a last resort to recover said claimed debt.

 

Refer their sols to s.271(3) of the act and state that you believe that the Court will agree with you as regards your said offer and dismiss their clients' SD under the same o the grounds that their refusal to accept your said offer, taking into account all circumstances of this matter, including their clients' serious delay to instigate recovery action, was indeed unreasonable.

 

Kind regards

 

The Mould

 

This will not happen. A bankruptcy court will only consider two matters:

 

1. Does the debtor owe more than £750?

2. Can the debtor pay that off immediately?

 

Clearly, in this case, whilst part of the debt might be disputed, a sum well in excess of £750 is not. And it is clear the OP cannot pay that off immediately, and is providing the court with perfect evidence of that by asking to pay by instalments. Section 271(3) does not give the court power to consider whether the creditor should accept instalments, it only enables the court to consider whether an offer of security has been unreasonably refused. An instalment offer is not security.

 

The OP has two choices. First, persuade the creditor to voluntarily consider instalment payments. The court won't. Second, offer the creditor security i.e. a charge over his house. Obviously he would want that supported with some kind of undertaking that the creditor will not enforce the charge provided agreed instalments towards the debt are paid.

 

All that will be achieved by trying to get the demand set aside because the OP wants to pay by instalments is to increase the debt because the application will be dismissed and the OP will have to pay the creditor's legal costs.

[Gaston Grimsdyke]

HERE YOU GO THE MOULD

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR).

 

I am enclosing a cheque made payable to IG Index for the sum of £101.00, with this letter (£100 towards the amount owed of £10712.89) and £1 which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

I look forward to hearing from you.

 

Yours faithfully

 

Why are you wasting your time with this? The CCA is irrelevant as your agreement is not regulated by the CCA.

 

And don't try any of the Freeman of the Land garbage, you'll just label yourself as a debt evader and harden the creditor and court's approach to you.

[The Mould]

It was established early on in this matter that the CCA 1974 (as amended) does not apply to thesame, Shree is fully aware of this fact and it appears that the Site Team havechanged the title of this thread in order to avoid and further confusion as tothe SD served on Shree and the applicable law that applies.

Shree, do you have a family member, or very close friend whois in good financial standing at present, if so, your family member or goodfriend could act as a Guarantor in respect of your offer to repay the debt at arate of £100. This would mean though,that if such an option is available to you, that if the creditor agrees to thesame, that if you should default on said £100 per month payments, then creditorcan sue any such Guarantor for full amount. Such an undertaking by a family member or close friend would place agreat legal responsibility upon theirshoulders and their trust in you.

If the above para 2 is available to you, then I believe thatyou could succeed in a set aside Defence based upon the same (if creditorrefuses) as you would be able to show the Court that you have offered areasonable offer to repay the debt claimed and that security for such has beenoffered by third party by way of Personal Guarantee Agreement. I believe s.271(3) would apply to suchcircumstances.

Unsure about the “Freeman of the land garbage” commentsposted here and who they are aimed at, Shree is clearly not trying to avoidthis debt, and maybe such words could only have come from a child whose motherwas a jackal.

Kind regards

The Mould

[Gaston Grimsdyke]

Yeah that's right I'm a shapeshifting lizard in my spare time

[dx100uk]

it appears that the Site Team have changed the title of this thread in order to avoid and further confusion as to the SD served on Shree and the applicable law that applies.

 

Just to clarify

I changed the thread title to better reflect what the sd concerned

 

there was no ref to which laws applied before or after the change in the thread's title

 

what was there was this 'under section 268(1)(a).'

 

sorry if that made a problem i''l put it back in

 

dx

[Shree420]

Why are you wasting your time with this? The CCA is irrelevant as your agreement is not regulated by the CCA.

 

And don't try any of the Freeman of the Land garbage, you'll just label yourself as a debt evader and harden the creditor and court's approach to you.

 

Whatever the case Gastro. They have sent me this as a reply in response to that.

 

So it is still very useful to have a copy of the customer agreement for this.

 

I passed your request on to our Compliance department and they have advised me that as you did not have a credit account with us there is no "credit agreement". There is however a "Customer Agreement" which you would have agreed to when opening your account. I have requested a copy of the relevant Customer Agreement from our Marketing department and will forward this to you once I receive it.

[Shree420]

Last night I really decided to take the bull by the horns.

 

The choices to me were:

 

a) Apply for it to be set aside for the reasons as suggested by THE MOULD

b) Take my chances at a petition and explain to the judge about my illness, reasons for this debt, willingness to pay with a very reasonable offer and the length of time taken for IG to chase ask for the money

c) Try and appeal doing my very best (with honesty and integrity) to the creditor

 

Last day for the SD to be SET ASIDE would be Thursday but I would need to do tomorrow (Wednesday).

 

I opted for © and bypassed the solicitors completely and went directly to the creditor.

 

I went through my illness, my willingness to resolve and asked them if they got my letter from the solicitor.

 

They had received it just this morning but despite that she was amazingly compassionate and understanding. SHe went through the facts with me and accepted my offer but also agreed to cancel off the interest and put it on hold provided I pay the £100 on time monthly.

 

I feel totally relieved. Its such a massive weight off my mind. Reading some of the comments in this thread, I really did fear I could lose my family home of the last 24 years.

 

In a way I just wish I bypassed the solicitors sooner (who were obviously happy to build up a massive bill) and contacted the creditors directly immediately.

 

That is my learning curve and advice to anyone in the future facing a similar issue.

 

Go direct to the creditor whatever the case and talk with them one to one. Try and appeal to their better nature.

 

Thank you all but a massive thank you to THE MOULD who persisted in trying to help day and night and showing true compassion (feeling another persons pain)