Council tax / bankruptcy help & advice

[suffering]

Following the usual route of a liability order

 

the council went for bankruptcy.

 

I challenged various issues and got two adjournments whilst they came up with answers

 

on the third occasion i challenged that i did not believe the council had followed the correct process.

 

I.E i asked for proof that they had carried out the correct searches

and if not the case should be struck out, the searches are;

 

a) The royal courts of justice &

b) the central london county court &

c) in any county court which it is believed is or was within that period the debtors own county court

within the meaning of rule 6.9A (3)

 

i asked this as i believe it is virtually impossible to carry out all three searches see here,

http://tremark.co.uk/news-a-views/365-bankruptcy-update-searches-to-be-undertaken-before-issuing-a-petition

 

The councils solicitor did not show up and the judge said upon hearing the evidence

it is ordered that The application for bankrupcy be dismissed.

 

the case was dismissed i have since had the registration removed from the land registry. (this was 4th july 2013)

 

The council have now made an application to have the petition re-instated, on the grounds that,

they are claiming that they were not made aware of the previous hearing.

 

I need help or advice how to defend this.

 

Surely anyone can say they did'nt now about a hearing,

is'nt there a law deeming that a letter sent by post is deemed to be served?

 

can i claim that their internal system failed them?

 

any sugestion or help please

[suffering]

idea's anyone?

[gerson]

Hi Suffering,

 

I have flagged this to admin as I don't think this is the right forum (home repos- successes)

 

Hopefully you will be moved into a better forum where you will undoubtably get advice

 

G

[maroondevo52]

Hi Suffering,

 

I have flagged this to admin as I don't think this is the right forum (home repos- successes)

 

Hopefully you will be moved into a better forum where you will undoubtably get advice

 

G

 

Thread moved to more appropriate Forum.

 

Thanks gerson

[citizenB]

The council have now made an application to have the petition re-instated, on the grounds that, they are claiming that they were not made aware of the previous hearing. I need help or advice how to defend this. Surley anyone can say they did'nt now about a hearing, is'nt there a law deeming that a letter sent by post is deemed to be served? can i claim that their internal system failed them? any sugestion or help please

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06#6.2

 

Civil Procedures linked above deals with the service of documents.

 

If the document(s) are not returned to sender, then yes I think they are deemed served if sent to the last known address - using 1st class post - deemed served 2nd day after posting and by

2nd class mail - 4 days after posting. Bank holidays and weekends are excluded from posting dates. So if sent on a Friday then the posting days don't start until the Monday.

 

HTH

[ploddertom]

Is it possible to go back to the beginning to see how you got to this as it is one of the last steps in a very long line.

[suffering]

Thanks citizenB & gerson for getting me some attention

I read the link from CitizenB which lead me to search further and came across this :

 

The case of Calladine-Smith v Saveorder Ltd [2011] EWHC 2501 (Ch) sets an important precedent regarding the Interpretation Act 1978 and the service of notices.

 

 

 

In this case, Saveorder Ltd contended that service of a counter-notice on Mr Calladine-Smith had been effected as it was able to prove that the envelope containing the notice had been properly addressed, pre-paid and posted. Mr Calladine-Smith contested that service had been effected and asserted that Section 7 of the Interpretation Act 1978 (“the Act”) allowed him to prove that he had not received the letter.

Section 7 of the Act provides that:

“Where an Act authorises… any document to be served by post… then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting… the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

The Judge held that Section 7 is to be read in two parts: the first being whether the document was properly addressed, pre-paid and posted; and the second being whether the letter was delivered in the ordinary course of post. It was held that the wording, structure and layout of the section “clearly provides” that the word ‘contrary’ refers to whether the letter was delivered in the ordinary course of post and not to whether the letter was properly addressed, pre-paid and posted.

Furthermore, it was held that the addressee must prove that the letter was not delivered on a balance of probabilities as determined by the Court upon a consideration of all evidence. The test is no more stringent than that and the addressee does not need to provide positive evidence that the letter was not served.

The Court therefore held that Saveorder Ltd had not effectively served a counter-notice on Mr Calladine-Smith.

Prior to this decision, documents were deemed served provided the sender could prove that letter had been properly addressed, pre-paid and posted. However, under Calladine-Smith, where there is proof, on the balance of probabilities, that the letter was delivered late or not delivered at all, then this will rebut the initial presumption of deemed service.

 

It would seem that, you can claim that you did not receive post, if it is not signed for.

Edited September 5, 2013 by suffering

[suffering]

First the bad news

 

we made a cock up with the court hearing time and did not attend the hearing and the council got the bankruptcy re-instated

But i had sent a letter to the court out-lining our defence i.e. they had not followed the correct procedure

I.E i asked for proof that they had carried out the correct searches and if not the case should be dismissed or struck out,

 

the searches are;

a) The royal courts of justice &

b) the central london county court &

c) in any county court which it is believed is or was within that period the debtors own county court within the meaning of rule 6.9A (3)

 

And i am aware that they asked for a copy of my letter that i had sent to the court.

[suffering]

Now the good news for us and anyone facing bankruptcy for council tax.

 

Bearing in mind the councils solicitors had signed a declaration certificate stating they had carried out the correct searches

and therefor would of been in contempt of court and had mislead the court. (very serious )

 

They have written to the court to stating that they have decided not to persue this bankruptcy application

and would be obliged if the petition could be dismissed.

 

So after getting it reinstated 10 days later asked for it to be dismissed

[dx100uk]

well done!!

 

dx

[suffering]

The case was dismissed on 16th we received a letter on the 21st saying the council will now serve a new statutory demand and they will proceed with a new bankruptcy petition mmmm. I am wondering just how many people lost their homes with the council lying to the court on a signed declaration certificate and not following the correct procedure. Does anyone have any ideas as to the process of reporting them to the court

[suffering]

I was in court today.

 

I need a detailed case law where can i get it?

 

I Had asked for proof again that the claimants provide evidence that

they had carried out the correct searches as required by the insolvancy rules, practice direction 14.3

 

this had been ignored so

 

i said i needed it to form part of my defence.

 

i had also made an offer to pay all current year if the outstanding council tax could be temporarally frozen. This had also been ignored.

 

in court the claimant smugly produced evidence of the searches, and handed it to the judge.

who looked at it and said everything was in order and he did'nt need to check it because he had seen the signed certification

that the searches had been carried out.

 

i asked to see the paper work on the grounds that it formed part of my defence.

 

on checking the paperwork i noticed the checks had been carried out on 13 March and the signed cert.

said the searches had been carried out on the 18 March.

 

i therfore requested the petition be dismissed or struck out under rule 3.4(2) of the CPR as the certification was invalid.

 

i told him I had also made a note of a case law Re; Gunningham (2002) BPIP303 case dismissed for effect of non compliance with insolvency rules.

 

To cut a long story short he adjourned the hearing to allow me to produce the case law in detail and submit a detailed defence.

 

i got the impression he did not know what to do,

 

so where can i get a detailed case law from?

[suffering]

Help required Recap; The councils solicitor submitted to court a document certifying they had carried out a searchies on 17th of march (practice directions mean they have to submit this) however they actually carried out the searchies on the 13th March, so my argument is the cert. is not certifying anything if the dates are wrong, i have an adjournment for tues 24th june.

(I have made an arrangement to pay the outstanding tax but they still want to persue the bankruptcy. I believe if i can have the petition thrown out they will not re issue another one whilst agreed payment are being made).

[suffering]

This was my actual letter to the court / judge along with the gunningham case law details.

 

This application is to ask the court to dismiss or strike out the bankruptcy petition on the grounds that it would be unfair to the debtor because; Whilst The debtor is accused of not complying with a statutory demand / the petitioner has not complied with practice direction rules.

Despite repeated requests for the petitioner to comply with the rules within practice direction 14.3 the rules were not adhered to. This is unacceptable given the seriousness of the case and the fact that Bankruptcy is used on a large scale by the petitioner and on a previous hearing did not even bother to carry out the searches.

1 . Practice direction 14.3 of the insolvency proceedings (rules 1986 / amendment 2012) was not adhered to.

 

2. The correct procedure was not followed. The creditor did not carry out the searches in the previous 18 months as this should of been carried out on the 21 March 2014

 

3. A non-compliant and factually invalid certificate was issued. The certifying document is required to comply with practice direction 14.3

i. The document does not certify that the searches were carried out in the previous 18 months as the date is 18 March 2014 and should be 21 March 2014

ii. The certifying document states that; we certify that “we have conducted a search for petitions presented against the debtor in the period of 18 months ending today” the document is dated 18 March. However the search documents produced in court, confirmed that the searches were not conducted as stated but actually carried out on 13th March. Therefore the document is not only misleading but factually invalid, therefore none compliant with practice direction 14.3

 

4. The defendant would like to bring to the courts attention that the petitioner / creditor was asked on a previous application to provide documents to prove they had carried out the correct procedure. Failing to do so and un-challenged the case was dismissed. After reinstating the case, and the debtor asked again for evidence. But rather than provide the documents the petitioner chose to ask the court to dismiss the application. Please see document’s marked ( A). Therefore the petitioner was fully aware and on notice that the debtor required the correct procedure to be carried out.

 

5. The debtor made a request prior to the previous hearing on the 10June 2014 for the correct documentation, to evidence that the petitioner had complied with the rules. This was done both by email and in writing Please see document (B)

 

 

6. The Documentation was presented in court, where the two errors with conflicting and confusing dates were noticed. Please see document ©

 

7. Published Case law re; Gunningham (2002) BPIP302 / effect of non-compliance with insolvency rules, supports this request , with many similarities, as the debtor has repeatedly asked for practice direction and rules to be complied with. Please see document (D) provided by the principle civil clerk on behalf of Stephen Davies QC. Of Guildhall Chambers (Council for Gunningham) published in Bankruptcy and Personal Insolvency Reports (BIBP)

 

 

8. It is noted that the petitioner used “TREMARK Associates “ to carry out searches. The TREMARK web site makes it very clear that practice directions have a statutory force, and the consequences of failing to comply could result in a application to strike out under rule 3.4(2) of the CPR. The web site also quotes case law Re; Gunningham (2002) Please see document (E)

 

The Judges decision; he said he understood my aurgument but that a petitioner for bankruptcy does not have to follow practice direction and i had raised a civil law reason to dismiss but as this was under insolvancy law. The bankruptcy would be allowed, however he adjourned the hearing for 14 days to give me chance to come to an arrangement to secure the debt.

Q. was he right petitioners do not have to follow the practice direction rules?