SD from lowells etc - old halifax card, terminated before DN expiry - help

[Old Cogger]

Part 6 rules about service apply generally

 

6.1 This Part applies to the service of documents, except where –

(a) another Part, any other enactment or a practice direction makes different provision; or

(b) the court orders otherwise.

(Other Parts, for example, Part 54 (Judicial Review) and Part 55 (Possession Claims) contain specific provisions about service.)

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Interpretation

 

6.2 In this Part –

(a) ‘bank holiday icon’ means a bank holiday under the Banking and Financial Dealings Act 19711in the part of the United Kingdom where service is to take place;

(b) ‘business day’ means any day except Saturday, Sunday, a bank holiday, Good Friday or Christmas Day;

© ‘claim’ includes petition and any application made before action or to commence proceedings and ‘claim form’, ‘claimant’ and ‘defendant’ are to be construed accordingly;

(d) ‘solicitor’ includes any other person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act); and

(e) ‘European Lawyer’ has the meaning set out in article 2 of the European Communities (Services of Lawyers) Order 1978 (S. I. 1978/1910).

(The European Communities (Services of Lawyers) Order 1978 is annexed to Practice Direction 6A.)

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[Indebt1]

Unfortunately because this is a Statutory Demand rather than a conventional Claim, things are very different.

 

Having seen the Default Notice, then in a conventional claim you could argue this as part of your defence.

 

DN was dated 22nd January 2009 - a Tuesday. Almost certainly this would have been sent by 2nd class mail (it is what they did).

 

the statutory time has to allow for posting. 2 business days for 1st class - 4 business days for 2nd class (business days are Monday to Friday, excluding bank holidays and weekends.

 

So, a Default Notice dated 3 days before a Bank Holiday ? caught up in the Christmas post ! Being generous, if they posted it on the 22nd then you have the following..

 

22nd = Tuesday

23rd - Wednesday (1st posting day)

24th - Thursday (2nd posting day) - Christmas eve.

25th - Friday - Christmas Day (cant include)

26th - Saturday (cant include)

27th - Sunday (cant include)

28th - Cant include because Boxing day fell on a Saturday and this would have been a Public Holiday)

29th - Monday (3rd posting day)

30th - Tuesday (4th posting day)

 

So you would only have had 12 days and not the statutory 14 to remedy. If the DN was caught up in the backlog of post generated by Christmas.. who knows when you might have received it ?

 

It would appear they then terminated the account on the 4th January, which IMHO invalidates the Default Notice.

 

Then you have the Application Notice and the terms and conditions provided . The Application form is dated 2001 - the terms and conditions are dated 2000. When you first entered into the agreement - where these provided to you at the same time ! This was one of these pre agreed cards where you posted that form back. Were there any t&cs included.. bit daft to have them on the back of the page if they were then going to be returned to the company ?

 

Were you provided with any other terms and conditions within your s78 request ?

 

So it looks like they might not have complied with the s78 request and you have a dubious Default notice.

 

I will ask others on the site team how this information could be used. They might not see my S.O.S until tomorrow.

 

Another thing that is a bit odd - you say in one of your earlier posts that you do not own property or other assets. Do you have other debts that would be classed as priority ? If so, I cant see the point in a Stat Demand as Lowells would surely not receive anything ?

 

HI CB

 

i cant believe i missed that in the T&C's the date, if they terminated early they anyway invalidated the whole DN therefore the SD can be set aside as the debt is in dispute/non enforceable?

i didn't have the T&C's on the original application form and they are trying to botch it quite badly.

When i started this thread i had no equity as was mortgaged to the hilt but things have changed since and i now am deemed to have assets, i would look at getting the DCto back down quick and then trying to settle once i can convince them they have no case.

 

i am really impressed with the way you work out the dates.....

 

am hoping to go the court tomorrow with the replies and get this over and done with.....

[citizenB]

This is what I am asking of those with more knowledge indebt. Almost certainly you can use the fact that there is non compliance with the s78 request. Made to Halifax on DATE.

 

Whilst I am confident that with a conventional claim, the situation with the DN would play a significant part in your defence, I am less certain of its place in a set aside application !

 

although for sure, it proves there are triable issues and a conventional claim should have been used.

[Indebt1]

on another note could i just call and try to make a 10-20% settlement or would this be interpreted as a sign of weakness?

[citizenB]

When was the account assigned during this muddle ? Before or after the termination ?

[Indebt1]

When was the account assigned during this muddle ? Before or after the termination ?

 

After the termination i believe....

[citizenB]

Righto, thanks

[Indebt1]

This is what I am asking of those with more knowledge indebt. Almost certainly you can use the fact that there is non compliance with the s78 request. Made to Halifax on DATE.

 

Whilst I am confident that with a conventional claim, the situation with the DN would play a significant part in your defence, I am less certain of its place in a set aside application !

 

although for sure, it proves there are triable issues and a conventional claim should have been used.

 

Ok understood. Thank you

[Indebt1]

I have another letter asking me to contact before 7th Nov to arrange a payment solution or they go for bankruptcy proceedings, is this the norm has anyone settled with a discount at this point? feeling so jittery trying not to panic!

[citizenB]

If this is BW legal, then yes, it is their usual manner of putting you under pressure.

 

They are well aware that you have until the 4th of November to apply to set this aside. I think the 7th would be the earliest they could continue with the BR petition.

 

If you wish to contact them and make an attempt to enter into a payment arrangement, then do so. You would have to provide an Income & Expenditure sheet.

 

TBH, I have no idea whether your set aside would be successful or not. Which is why I have asked others to look in.

[Indebt1]

Wow Citizen B thanks again for the fast replies.. I think I am going to take a deep breath and wait for other responses about the set aside situation.

In my previous post I was debating to try and settle not go into a payment arrangement, but I guess they may not go for that and interpret as a sign of weakness.

Anyway I will await further replies and want to thank you again for your help.

[citizenB]

There is no harm in attempting to settle / come to an arrangement to pay, prior to submitting an application to set aside.

[citizenB]

I have been advised the DN situation is very weak, and would be of no value to you.

 

So, I think you need to really think about what reasons you have left to apply for a set aside.