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Statutory Demand - hand delivered after the 18 day limit.


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I notice there is "Credit care" mentioned. That is Payment Protection Insurance in disguise. Was it requested, was it of any benefit, are you able to make a claim for its refund ?

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Looking at the templates, what's the difference between SAR's and S77/78 CCA letters? What's the relevant uses as one seems to only take 2 weeks the other up to 40 days?

 

Mike.

 

CCA request is concerned only with the actual agreement.

 

SAR request is for ALL data they have in respect of your financial dealings - unfortunately it does not include a copy of the agreement. (And before you ask.. I simply do not know why IMHO it is data)

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3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Evening again.

 

Long day today, out early and only home the last hour. Roll on retirement. :/

 

CitizenB, you ask about the Creditcare. I believe it is a PPI, but surely there can't be anything to claim back? One can claim back what one has paid out surely and this is an unpaid debt?

 

Letters written using templates. Lets see what happens. By the way, the cheque for £10 has been cashed already.

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My letter, going out recorded delivery in the morning. Comments please?

 

(ARGGGH! Why does the forum software keep reformatting the text!?!?!?!"

 

 

 

BW Legal.

 

 

The Tannery

 

91Kirkstall Road

 

 

Leeds

 

 

West Yorkshire

 

 

LS3 1HS

 

 

 

 

 

By recorded delivery

 

 

 

 

 

Dear Siror Madam.

 

 

 

 

 

Ref: xxxxxxxxxx. Subject AccessRequest and CCA

request.

 

 

 

 

 

This letter places your claim in DISPUTE. Note that the

OFT states under theirGuidance that it is deceptive and unfair in not ceasing

collection activitywhilst investigating a reasonably queried or disputed

debt.

 

 

 

 

 

Furthermore,if you ignore and/or disregard claims that

debts are ‘disputed’ and continue tomake unjustified demands for payment then

this can amount to physical orpsychological harassment, as also detailed in the

OFT Guidance.

 

 

 

 

 

The reasons for dispute are:

 

 

 

 

 

1. Anyone can send a

letter claiming an alleged debt. Therefore please find attached asannex 1 a

formal request pursuant to s.77/78 of the Consumer Credit Act 1974.

 

 

 

 

 

2. At this time I

believe the alleged debt to be Statute Barred. Information is beingcollected

from other sources to verify this.

 

 

 

 

 

3. By your immediate

use of the threat of bankruptcy you are breaching the OFTguidance on debt

collection 2003/2006, updated Nov 2012. Details in annex 2.

 

 

 

 

 

4. There has been no

Notice of Assignment as required by The Property Act 1925. Thisrequires that an

explicit Notice of Assignment must be given to the debtor bywriting under the

hand of the assignor as required by S136(1) of the Law ofProperty Act 1925.

Therefore I enclose a Subject Access Request. Please seeannex 3.

 

 

 

 

 

5. By dating your

Statutory Demand nineteen (19) days before it was physically passedto the

alleged debtor, and by claiming there is an 18 day time limit to replywhen the

law states 21 days must be allowed, you are falsely applying pressureto the

alleged debtor.

 

 

 

 

 

Find enclosed the following:

 

 

 

 

 

· Chequenumber 000000

to the value of £10. This is for the Subject Access Request asnoted in annex 3

and can be used for no other purpose.

 

 

 

 

 

· Chequenumber 000000

to the value of £1. This is for the CCA request as noted in annex1 and can be

used for no other purpose.

 

 

 

 

 

Sincerely

 

 

 

 

 

 

 

 

 

 

 

Mrs.abc defgh

 

 

 

 

 

 

 

 

Annex 1

 

 

 

 

 

Ref: xxxxxxxxxx. CCA Request

 

 

 

 

 

 

 

 

This letter is a formal request pursuant to s.77/78 of

the Consumer Credit Act1974. I require you to provide me with a true copy of the

credit agreementrelating to the above account, together with any other

documentation the Actrequires you to provide.

 

 

 

 

 

I expect you to comply fully and properly with this

request, within thestatutory time limit. You are reminded that should you fail

to comply with myrequest, the provisions of s.77(6) will apply.

 

 

 

 

 

If it is your view that you are not the creditor, s.175

of the CCA 1974 appliesin the case of a simple assignment, and places a duty

upon you to pass thisrequest to the creditor. In the case of an absolute

assignment, you are acreditor as defined by s.189. If you contend that you

purchased the rights butnot the duties of any agreement, you are reminded that

s.189 of the Act isclear 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 Protectionfrom Unfair Trading Regulations 2008.

 

 

 

 

 

I enclose a postal order in the sum of £1.00, which is

the statutory fee. Notethat these funds are not to be used for any other

purpose.

 

 

 

 

 

If you are unable to comply fully and properly with

this request, you shouldconfirm this in writing at the earliest opportunity, and

certainly within thestatutory time limit for compliance, and return the

fee.

 

 

 

 

 

We look forward to hearing from you. Until such

information is supplied thismatter should be considered to be in

dispute.

 

 

 

 

 

 

 

 

Annex 2

 

 

 

 

 

The OFTguidance on debt collection 2003/2006,

updated Nov 2012 states:

 

 

 

 

 

3.6Putting undue pressure on debtors or relevant third

parties (for example,appointed representatives) is considered to be oppressive

and an unfair orimproper practice.

 

 

 

 

 

3.7Examples of unfair or improper practices are

as follows:

 

 

 

 

 

n. making undue, excessive or otherwise

inappropriate useof statutory demands when pursuing arrears or debts

 

 

 

 

 

Annex 3

 

 

 

 

 

Ref: xxxxxxxxxx. Subject

AccessRequest

 

 

 

 

 

Please supply me with copies of all the data

which you hold on me in relation to anymatter and in any form and for any period

of time.

 

 

 

 

 

Please note that I require disclosure of any personal

data which you hold on mefor the entire period of my dealings with

you.

 

 

 

 

 

This Subject Access Request includes - but is not

limited to any data you holdabout me in respect of any matter and held in any

form including notes, screennotes, recordings, internal correspondence and

external correspondence.

 

 

 

 

 

I enclose the statutory maximum fee of £10. You have 40

days in which to comply.

 

 

 

 

 

If there is specific information which you require in

order to satisfy yourselfas to my identity, please let me know by return.

 

 

 

 

 

 

If I do not hear from you then I will assume that this

Statutory Request issatisfactory and that the 40 day timescale has started.

Until such informationis supplied this matter should be considered to be in

dispute.

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Good Monday morning to you all.

 

I'm off out to work as usual, but I was hoping someone would have a comment on my letter above.

 

Also, I've been struggling with this set-aside thing. Why? Because I can't find a judgement to be set aside. All my research says this is for a case that has been heard and a judgement given but the Statutory Demand Wife was sent was a threat of action. I still have a couple of days before the time limit is up so please advise. With no actual court date present or past is there a record of this SD at County Court that needs setting aside? Would I use the headings I used in the letter above as reason?

 

Thanks.

 

Mike.

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A stat demand does not enter the court system until YOU the recipient makes application to have it set aside. So there will be NO judgment as yet.

 

Can you please confirm that you have written 3 x letters.

 

1 x CCA request, attaching a £1.00 cheque/postal order for the Statutory fee

1 x SAR request attaching a £10.00 cheque/postal order for the Statutory fee

1 times letter of complaint ?

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Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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BTW, it is 40 calendar days they have to comply with the SAR and 12 working days + 2 for the CCA

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Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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A stat demand does not enter the court system until YOU the recipient makes application to have it set aside. So there will be NO judgment as yet.

 

I've been on the phone to the CAB today. Couldn't get through, ("we have no help in your area") but their phones redirected me to the National Debtline. They advised me that they can't tell me about a Set Aside as it's a legal matter, and passed me to Civil Legal Advice. THEY said I wasn't entitled to legal aid and said goodnight. Sigh. Which is a long winded way of saying that all help provided by yourselves is greatly appreciated.

 

Which leads me to the confusion (in my mind, I'm easily confused) of a set aside. I have 18 days to enter a set aside from the date of serving, but the court doesn't know there is even a case, so by entering a set aside application I am telling the court "hey, look at me" just when I don't want to be seen. Oh well.

 

Can you please confirm that you have written 3 x letters.

 

1 x CCA request, attaching a £1.00 cheque/postal order for the Statutory fee

1 x SAR request attaching a £10.00 cheque/postal order for the Statutory fee

1 times letter of complaint ?[/Quote]

 

Yes, thanks. These are all in the single letter I posted on this forum on the 28th August at 22:00 hrs.

 

Mike.

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Which leads me to the confusion (in my mind, I'm easily confused) of a set aside. I have 18 days to enter a set aside from the date of serving, but the court doesn't know there is even a case, so by entering a set aside application I am telling the court "hey, look at me" just when I don't want to be seen. Oh well.

 

Yes, this is correct.

 

It is the reason that Stat Demands are being used so frequently now. They are so simple to issue and mostly used as a scare tactic "Debt collection tool" as it were.

 

If they were to use the conventional method of issuing a claim through the courts/Northampton bulk centre - the Claimant would have to pay a fee up front.

 

Whereas with the Stat demand, they just print off a form and get it served. This usually terrifies the recipient into contacting them or a settlement.

 

Although more of these are now being set aside as people understand what they are and that there are many good reasons to have them set aside.

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Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Right my dear fellow,

 

Any mis-sold ppi on this account/debt?

 

Did you receive a statutory default notice pursuant to s.87(1) of CCA 1974 (as amended)?

 

Do you dispute amount claimed in Statutory Demand? If yes, on what grounds do you dispute the same?

 

Have you made any reasonable offers to repay this claimed debt, that is, if you do not dispute the same?

 

What date was Statutory Demand ("SD") served upon you?

 

Come back and confirm all of the above please.

 

Kind regard

 

The Mould

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This usually terrifies the recipient into contacting them or a settlement.

 

In my wife's case terrify is an apt word. The c***s.

 

Although more of these are now being set aside as people understand what they are and that there are many good reasons to have them set aside.

 

The thing I still need is a reason to set aside, one that the court will agree with. I have the forms in front of me but they just look like Chinese...

Edited by cheesysocks
Add text.
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Right my dear fellow,

 

Good evening TM. Thanks for joining in. Bear in mind please that this is my wife's debt, and that I only found out about it a week ago. My knowledge may be sketchy and getting info out of her can be tricky.:sad:

 

Any mis-sold ppi on this account/debt?

 

There is PPI on it. Mis-sold? I haven't had the time to examine the terms and find out her circumstances at the time. If there is how does this help?

 

Did you receive a statutory default notice pursuant to s.87(1) of CCA 1974 (as amended)?

 

Yes, found it. Dated 3rd Feb 2002.

 

Do you dispute amount claimed in Statutory Demand? If yes, on what grounds do you dispute the same?

 

No.

 

The default notice gives an outstanding balance of £7182.53. Some of this was paid off, but at £1 a month I guess no more than £50. Leaves about £7132.53. They want £7217.10 an increase of about £85. Reasonable charges?

 

Have you made any reasonable offers to repay this claimed debt, that is, if you do not dispute the same?

 

Referring to my wife's few letters, Blair Oliver & Scott accepted her offer of £1 a month. Until she was taken ill (see earlier post) she kept these up. When ill I knew nothing of them so I wasn't paying. She was a wreck after the illness and REALLY withdrew. As I said, I've just found out.

 

What date was Statutory Demand ("SD") served upon you?

 

6pm on Monday the 19th of August 2013. At our front door.

 

Come back and confirm all of the above please.

 

Kind regard

 

The Mould

 

My regards back at you.

 

Mike.

Edited by cheesysocks
Corrected date of SD serving
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Good evening TM. Thanks for joining in. Bear in mind please that this is my wife's debt, and that I only found out about it a week ago. My knowledge may be sketchy and getting info out of her can be tricky.:sad:

 

 

 

There is PPI on it. Mis-sold? I haven't had the time to examine the terms and find out her circumstances at the time. If there is how does this help?

 

 

 

Yes, found it. Dated 3rd Feb 2002.

 

 

 

No.

 

The default notice gives an outstanding balance of £7182.53. Some of this was paid off, but at £1 a month I guess no more than £50. Leaves about £7132.53. They want £7217.10 an increase of about £85. Reasonable charges?

 

 

 

Referring to my wife's few letters, Blair Oliver & Scott accepted her offer of £1 a month. Until she was taken ill (see earlier post) she kept these up. When ill I knew nothing of them so I wasn't paying. She was a wreck after the illness and REALLY withdrew. As I said, I've just found out.

 

 

 

6pm on Monday the 19th of July. At our front door.

 

 

 

My regards back at you.

 

Mike.

 

Jesus, have you/your wife responded to this SD? (19/07/2013 - I think you may be well out of time to respond and set aside!). As regards the DN, what is the date of remedy of claimed breach stated therein?

 

Mis-sold ppi means that your wife has a set off Defence against the amount claimed in Statutory Demand!

 

Does your wife have a copy of her letter from BOS?

 

The DN, is it valid - does it comply with s.87(1) CCA 1974 (as amended)? Very, very important if you are to appeal bankruptcy petition!!!

 

Kind regards

 

The Mould

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Jesus, have you/your wife responded to this SD? (19/07/2013 - I think you may be well out of time to respond and set aside!). As regards the DN, what is the date of remedy of claimed breach stated therein?

 

Mis-sold ppi means that your wife has a set off Defence against the amount claimed in Statutory Demand!

 

Does your wife have a copy of her letter from BOS?

 

The DN, is it valid - does it comply with s.87(1) CCA 1974 (as amended)? Very, very important if you are to appeal bankruptcy petition!!!

 

Kind regards

 

The Mould

 

Evening again.

 

I guess you haven't read the whole thread? I have responded to them putting it into dispute. I've asked for as much info as I can asking for SAR and CCA. The 18 days expires on Friday which is why I'm looking for info. I keep getting told to set it aside, I have the forms, but I have no idea what grounds to use and what is expected in the way of wording, etc. I've searched for examples but not found any.

 

A set off defence. With all due respect, these phrases are thrown about as if everyone who comes here knows them and how to implement them. I'll research, thanks.

 

The letter from BOS? You mean the Default Notice? I have it here next to me. As for validity it's something else I have no idea about.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/87

 

This section just seems to say that service of a notice must be done before the items in the list can be actioned. Section 88 seems to define the content of the notice. S88(1) is all complied with. However 88(2) says there should be 14 days between the date of service and the date mentioned in (1). The letter is dated 3rd Feb and the text reads "To remedy the breach, you must pay the total arrears of £301.89 before the 13/02/2002." This is just 10 days. Does this invalidate the DN? No idea if there was an OFT arrears information sheet as required.

 

 

This is the sanitised letter.

http://i.imgur.com/KKDHnLv.png

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Mould I think cheeseysocks has got his date wrong, in the first post he states 19/8/13 not 19/7/13 as the date the SD was hand delivered.

 

Did I write July somewhere... Doh. Original post now corrected/edited.

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I'm off for another day of charm and beauty, otherwise known as working for a local council. The irony of it is that in my job I can issue FPN's and prosecute people for various things too. (No, not a traffic warden!)

 

The one question I would really like some help on right now is this set aside form and statement of truth. What, IF ANYTHING, can I use as a valid reason or reasons? AND are there any examples (sanatised) of set aside forms so I can see what is expected in phraseology, writing styles, effective wording etc. What bit goes on what form?

 

Again, thanks. I'll try to look in during the day if I get the chance to get to a PC.

 

Mike.

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Evening again.

 

I guess you haven't read the whole thread? I have responded to them putting it into dispute. I've asked for as much info as I can asking for SAR and CCA. The 18 days expires on Friday which is why I'm looking for info. I keep getting told to set it aside, I have the forms, but I have no idea what grounds to use and what is expected in the way of wording, etc. I've searched for examples but not found any.

 

A set off defence. With all due respect, these phrases are thrown about as if everyone who comes here knows them and how to implement them. I'll research, thanks.

 

The letter from BOS? You mean the Default Notice? I have it here next to me. As for validity it's something else I have no idea about.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/87

 

This section just seems to say that service of a notice must be done before the items in the list can be actioned. Section 88 seems to define the content of the notice. S88(1) is all complied with. However 88(2) says there should be 14 days between the date of service and the date mentioned in (1). The letter is dated 3rd Feb and the text reads "To remedy the breach, you must pay the total arrears of £301.89 before the 13/02/2002." This is just 10 days. Does this invalidate the DN? No idea if there was an OFT arrears information sheet as required.

 

 

This is the sanitised letter.

http://i.imgur.com/KKDHnLv.png

 

DN is dated 3rd Feb 2002 - this is a Sunday, therefore, date of postage would be Monday 4th Feb.......allow 4 days for service (because 2nd class will undoubtedly be used), this will take date of service of DN upon you to Friday 8th Feb 2002, therefore, date of service on you is Friday 8th Feb 2002 (poss date of service might be 7th Feb 2002), if the credit agreement falls under the CCA1974, then 7 clear days must be allowed in the DN to remedy the breach relied upon, if agreement falls under the CCA 1974 (as amended in 2006) then DN remedy date must allow a clear 14 days to remedy the breach relied upon. In either case, the sum claimed in the DN as the amount relied upon in breach of the credit agreement must be accurate, failing that, the DN will be invalid.

 

Kind regards

 

The Mould

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OK

 

Don't worry about how to "word" it, you speak how you speak.

 

Set off Defence against a creditor who serves a Statutory Demand, simply means that the creditor owes you more money than he is claiming you owe him in his SD.

 

If there is mis-sold ppi on this agreement (let's face it, all ppi has been mis sold to the consumer!!!!)

 

Mis-sold ppi is a valid reason to request a set aside!

 

Service by the creditor of a default notice that does not comply with the statutory provisions of s.87(1) CCA 1974 (as amended) is a valid reason to request the Court set aside.

 

If your credit agreement falls under the provisions of CCA 1974 - then DN must allow 7 clear days to remedy the breach relied upon and stated therein, the breach must be accurate!

 

If your credit agreement falls under the provisions of CCA 1974 as amended in 2006, then DN must allow 14 clear days to remedy the breach relied upon stated therein, the breach relied upon must be accurate.

 

In either case, the language of the DN must comply with the CCA 1974, the relevant section is 87(1), if the creditor has not complied with statutory requirements as laid out in said section, then he cannot proceed to enforce the credit agreement against you!

 

Research the above. It will provide you with all authorities thereon and all the legal arguments that you need in order to succeed.

 

Kind regards

 

The Mould

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In order to avoid any doubt inthis area, I am posting the material hereafter simply to clarify the law ofset-off, because it is not simply the case that a Defendant can invoke the sameif the Claimant should be found to owe him more that what is claimed. The material below clearly shows that aDefendant can reduce his liability for or even defeat the claim against him if he canshow that the Claimant owes him money – a set off.

The law of set-off has a longhistory. Borrowed from the civil law

doctrine of compensation,1 theEnglish Chancery Courts adopted the equitable

doctrine of set-off, which wasthen known as stoppage. The common law courts

in England adopted the defence ofset-off in 1729 by way of statute.2 The two

areas of law merged and themodern defence of set-off took shape. As stated

by Lord Denning in FederalCommerce & Navigation Co. v. Molena Alpha

Inc.:

[The] streams of common law andequity have flown together and combined so

as to be indistinguishable theone from the other. We have no longer to ask

ourselves: what would the courtsof common law or courts of equity have done

before the Judicature Act? Wehave to ask ourselves: what should we do now

so as to ensure fair dealingbetween the parties. [. . .] This question must be

asked in each case as it arisesfor decision: and then, from case to case, we shall

build up a series of precedents to guide those whocome after us.3

On 11June 2010, the Court of Appeal gave its decision in Geldof MetaalconstructieNV v Simon Carves Limited [2010] EWCA Civ 667. In deciding this case,the Court took the opportunity to review and clarify the law on equitable setoff – “because there appears to be some uncertainty on the subject” – and alsoto interpret an express clause in the contract between the parties which theAppellant argued extended the common law right of set off.

As iswell known, the defence of set off allows a party receiving a claim to use acounterclaim to reduce or defeat the claim. The right to set off is oftendealt with expressly in a contract, failing which, the common law fills thegap.

 

Special rules apply in the case of insolvency, which are not covered here.

 

Equitable set-off is more likely to be available where the counterclaim arisesout of the same contract as the claim than where the claim and counterclaimarise out of different contracts.

Wherethere are contractual terms as regards set off, more often than not, the clausewill seek to limit or exclude the common law right of set off. Forexample, construction contracts are subject to the statutory requirement thatwhere parties intend to pay less than the sum notified as due (that is, wherethey intend to set off a counterclaim against that notified sum), they may notdo so unless an effective notice has first been given.

Lessfrequently, clauses are found in contracts which allow a more liberal right toset off than is found in the common law.

Allowing equitable set off: thetest

In the GeldofMetaalconstructie case, the Court reviewed a long string of cases rangingfrom Hanak v Green [1958] to Bim Kemi v Blackburn Chemicals[2001] where different judges have placed different emphasis in terms of thetest for what is required before equitable set off may be allowed. TheCourt concluded that Lord Denning’s clearly formulated test expressed in 1978in TheNanfri” was to be preferred, namely

“crossclaims…so closely connected with [the plaintiff’s] demands that it would bemanifestly unjust to allow him to enforce payment without taking into accountthe cross claim”.

The Courtwas at pains to emphasise that the test was based on legal principle ratherthan discretion. As Hobhouse J said in Leon Corporation v AtlanticLines and Navigation Co Inc [1985]:

“Thisdefence does not vary according to the length of the Lord Chancellor’sfoot. The defence has to be granted or refused by an application of legalprinciple”.

The legalprinciple involves the application of a test which has two elements: firstly,the requirement for a “close connection” between the claim and the counterclaim(the “formal” element) and secondly, the requirement whereby it needs to beunjust to enforce the claim without taking into account the counterclaim (the“functional” element). The formal and the functional elements cannot bedivorced from one another. Both are needed.

How maythis re-statement of the test for equitable set off be applied in the everyday,commercial context? Each claim and counterclaim will have its own set offacts, all of which must be considered in order to assess whether the twoelements of the test for equitable set off are satisfied. Where the claimand counterclaim both arise from the same contract, it is likely that bothelements of the test will be satisfied, although this may not always be thecase. Where the claim and counterclaim arise from different contracts,satisfying the test may prove more difficult. Nevertheless, asdemonstrated in the Geldof Metaalconstructie case, where the claim andcounterclaim arose separately from a supply contract and an installationcontract which were concluded at separate times, separately tendered andindependent of one another, it was possible to demonstrate links and behaviourswhich were sufficient to satisfy the “close connection” test and equitable setoff was allowed.

The contractual right of set off

Thesupply contract in the Geldof Metaalconstructie case contained a clausewhich was headed “Right to Offset” which provided:

“Purchaser,without waiver or limitation of any rights or remedies of Purchaser or Owner,shall be entitled from time to time to set off against the Purchase Order Priceany amounts lawfully due from the Supplier to the Purchaser whether underthis Purchase Order or otherwise”.[our emphasis]

Thequestion which arose was, in reliance on this clause and as an alternative tothe right to equitable set off, whether claims under the separateinstallation contract could be set off against claims under the supplycontract. In particular, it was argued that the words “under thisPurchase Order or otherwise” allowed the set off of claims arising underseparate contracts and the words “any amounts lawfully due” went beyondthe law of equitable set off by removing the need to satisfy the two elementsof the common law test.

The Courtdecided that the claim under the installation contract could be set off againstthe claim under the supply contract in reliance on this clause without the needto satisfy the close connection and manifest injustice test required forequitable set off. This clause is thus an example of parties, by the termsof their contract, enlarging upon the equitable right of set off.

The Geldof Metaalconstructie case reminds us of how expresscontractual rights of set off can facilitate set off across contracts wherecircumstances make this convenient. However, take care with thedrafting. The words “any amounts lawfully due” in the GeldofMetaalconstructie clause gave rise to considerable argument about whetherthe cross claim had to be ascertained, either by agreement or adjudication,prior to it being capable of set off. In this case, the court decided itwas not necessary, but this was partly due to the claimant having alreadyconceded that the cross claim fell within the set off clause. If theconcession had not been made, the argument may have succeeded that the crossclaim was not “an amount lawfully due”. Consequently,consideration should be given to including different words in set off clauses,such as “ claims which are reasonably assessed and made in good faith”, orsomething similar.

Kind regards

The Mould

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