BW Legal notice - Stat Demand received - 2 Credit accounts merged ** SET a SIDE + COSTS **

[superstarjan]

Couldn't they just have wrote it on?? When I sent the others, I remember I had to send them blank, has that changed?

[superstarjan]

Right, I obviously need to get this sent back out asap. Can somebody tell me if I should just re-send the original letter or send a different one in light of them wasting time like this?

[superstarjan]

Quick advice on the above anyone before the post office closes?

[fkofilee]

Follow their steps here... send out the original letter.

[superstarjan]

thanks, will do that now!

[superstarjan]

Ok, it's gone off again in today's post!

 

I now need to start thinking about my witness statement and go to court to make an application to set it aside.

 

Please remind me, do weekends count in the 18 days?

[citizenB]

Yes, 18 calendar days from the time the demand came into your hands.

 

There is some information in the thread linked below. You might want to read the attachment posted by andyorch.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?407519-Statutory-Demands-and-Lowells.

[superstarjan]

Thanks for that, just read through them and trying to bring myself up to speed.

 

I'm just filling in form 6.4 now and going to make a start on my witness statement after that. Is there a link to any guidelines on here, that I can plough through?

 

I don't want to be constantly asking questions, but think I may have a few when it comes to the witness statement!

[superstarjan]

Another point, as well as any links to how to fill in 6.4, can anybody point me to the draft witness statement? I need to have a read through it and adapt it. Please help, I need to get these into court by Thursday

[superstarjan]

Please can anybody help me to locate (on a thread) a basic template for the witness statement?

 

I have seen them on many threads on here and have just spent ages looking for one, but I haven't got much more time because I need to get them to court before thursday! So time is drawing in, plus I need to amend it to suit !

 

Please can you give me a link if you know of one offhand, or copy and paste it here for me!

[ims21]

Here you go...this might help

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406102-LEGAL-Form-6.4-amp-6.5-Application-to-set-a-side-a-Statutory-Demand

[superstarjan]

Thank you for that!

 

Do you know if the wording on it has changed in the last 2.5 years? I did one for my partner then, but it is over 6 pages long and I think I have read that they are more condensed now!

 

Also, sorry to be really thick, but what is the (TITLE)

 

Many thanks

[ims21]

I'll get it checked out for you.

[superstarjan]

Thank you!

 

What I need to try and get in the witness statement is:-

 

- Faulty DN

- account teminated

- no reply to CCA from op in 2009 and now no reply from dca

- stat demand not served on me, just hand posted through letterbox when I was at home (no knock)

- loads of penalty charges

- possible PPI (I can't remember if I had it or not)

[AndyOrch]

Read here :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?403882&p=4383239#post4383239 6.5

 

How to fill in Form 6.4

 

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from (CREDITORS NAME) be set aside

 

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the witness statement of the applicant sworn on (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of CREDITOR/SOLICITOR)

 

For (e)

 

The applicant’s address for service is: (e) (insert your name and address)

 

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

 

Regards

 

Andy

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?403882-Lloyds-TSb-and-Lowells-SD-Served&p=4383239&viewfull=1#post4383239

 

Have a read of post #24 .. do NOT simply copy and paste...

[superstarjan]

Do I have to make an appointment at the court, or can I just turn up?

 

I'm just going through the defence and I will post it up, hopefully someone will check it for me. I have to take out the notice of assignment bit, because I did receive a letter from hbos. Also, I need to have a good look at the DN bit, because I did receive one, it's just that it only gave 14 days from the date of the letter and not taking into account the post

[superstarjan]

Many thanks for that link Citizen, it was exactly what I was looking for and what I was getting myself into a twizz about!

 

I am going through it and all my papers and I have just noticed that on the two notice of assignment letters from hbos and the two from lowell, (2 accounts merged) they have got the account number wrong!

 

Also lowells haven't sent the cca after my request on 11th, is there a template letter that I can send now that the 14days are up?

 

Many thanks, I really need help today as I am going to court first thing tomorrow and want to double check with you that I havent made any daft errors!

[citizenB]

There is a CCA follow up letter, link below.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?405830-Letter-for-a-Failed-CCA-Request

 

In post # 2 you will find a pdf file that has the same letter as in post # 1. If you are going to send the letter without any changes, then use the pdf from post # 2 - fill in the variables and print off

 

You can point out in your affidavit that the Notices of Assignments are not account numbers that you recognise !

 

You should also point out that Lowells are still in breach of your s78 request.

 

If you want to pop up a draft of what you are preparing then we can have a look at it to ensure you have not made any errors.

[superstarjan]

Thank you!

 

This is what I've got so far:-

 

1) Do not admit the debt is recoverable because the enforceability of the alleged debt is in dispute, the creditor’s right to demand immediate payment is also disputed at this juncture:

 

The Respondent alleges that I am indebted to it in the sum of £xxxxx being the amount outstanding under a financial agreement. It is further alleged that the debt was assigned to the respondent from a HBOS agreement to Lowell Portfolio. I submit that the statutory demand should be set-aside upon the following grounds: -

 

2) It is believe that the Respondent’s use of a statutory demand is trite law and merely a scare tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of process. I believe the Respondent will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the insolvency Rules. The Respondent's letter accompanying the statutory demand included an invitation to make an offer. (Part of attachment "A")

 

3) The Respondent has failed to provide a copy of the consumer credit agreement that contains the prescribed terms. Under section 78 (1) of the Consumer Credit Act. On 07.01.09, the Applicant made a request pursuant s78 (1) Consumer Credit Act 1974. The request was in writing and accompanied by the statutory one pound fee. Two separate requests were sent, recorded delivery and they were delivered on 12.01.09. The Applicant had to follow up this request with a reminder, some 14 days later. (See attachment "B) A further request, together with the one pound fee has been sent to Lowell Portfolio on 11.10.13, but they have also failed to provide a copy of the consumer credit agreement.

 

4) The Applicant refers the Court to s78 (6) Consumer Credit Act 1974 which precludes the Respondent from proceeding with bankruptcy while it remains in breach. In the event that the Respondent seeks to avoid its obligations by suggesting that as an assignee it has no duty to comply with s78, then the Respondent is referred to Jones v Link Financial Ltd [2012] EWHC 2402 (QB) (22 August 2012) which affirmed that the duty to comply with s78 transfers to the Respondent on assignment.

 

5) The Applicant refers the court to the judgment of Mr Justice Warren in the High Court in the case of Hammonds (a firm) v Pro-fit USA Ltd [2007] EWHC 1998 (Ch) at Para 27.

 

27. "So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner)."

 

In respect of judgment of Mr Justice Warren as set out above the applicant avers that there is a clear dispute in relation to this debt and furthermore the Respondent is aware of this.

 

6) There has been a failure to provide any Default notice in the prescribed form. It is denied that any Default notice in the prescribed format was ever received and the Applicant puts the Respondent to strict proof that said document in the prescribed format was delivered to the Applicant. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 of the Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement, therefore without a valid Default notice the Respondents case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974. The agreements have also been terminated.

 

7) Notwithstanding the above, the Respondent has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925 which requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor. Section 196(4) of the Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:-

 

s196. Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

It is noted that by Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded or special delivery).

 

8) For the assignment of a debt to be effective and so giving the Respondent a right of action, a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to S196(4) before court action is commenced. It is denied that any Notice of Assignment was served on me and so the Respondent has no right of action. It is noted that the Respondent has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

 

9) In view of the matters pleaded above and that not all reasonable steps were taken by the Respondent before taking this action, the Applicant avers that the service of the Statutory Demand is demonstrably intimidatory and an abuse of process.

 

Judge Boggis QC – RE AWAN – [2000] BPIR 241

 

`In my judgement, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly`

 

10) The Applicant has not been provided with a statement of account showing how the sums said to be payable have accrued. The Applicant cannot even begin to consider what if any of the sums stated in the demand are payable, notwithstanding the points set out above, until the Respondent provides the aforesaid statements the Applicant is unable to consider any potential defence of set off that the Applicant may be able to raise.

 

11) It is clear that there are several triable issues and that these matters should be properly dealt with as a part 7 claim rather than the matter progressing via the Insolvency courts. The Applicant respectfully requests that the demand be set aside and the Respondent be ordered to pay the Applicants reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

Accordingly, the Applicant respectfully requests that the Statutory Demand be set aside and that the court award costs in this matter to the Applicant who is acting as a Litigant in Person. It is also requested that the court consider making an indemnity award in light of the upset and inconvenience that this has caused the Applicant.

[superstarjan]

One more question: the 12 + 2 days, for compliance with cca request, do I include weekends and does it start from date the letter was delivered, or date letter was sent?

[superstarjan]

Ok, I'm going to put this down to try and help anybody who has been served a stat demand, because I've spent hours and hours (during half term too) trying to read various threads, stickys and templates. It has been quite challenging and I have had/have so many questions.

So here goes, I will try my best, maybe somebody else would like to amend or add to anything that I write.

 

WHAT TO DO WHEN SERVED A STATUTORY DEMAND

 

1. Make sure that you have sent a CCA request to the dca http://www.consumeractiongroup.co.uk/forum/showthread.php?387435-CCA-Request-Consumer-Credit-Act-1974%281-Viewing%29-nbsp

 

2. Make sure that you have sent a SAR to the op http://www.consumeractiongroup.co.uk/forum/showthread.php?387306-Full-Subject-Access-Request%282-Viewing%29-nbsp

 

3. You have 18 calendar days from date it was served to make an application to the court to get it set aside. Use form 6.4 (application) together with 6.5 (witness statement).

Form6-04 (1).doc Application

Form6-05.doc Affidavit.

See note A. below for what to write on Form 6.4

 

4. Check that the court mentioned in the stat demand is in fact your nearest court and that it deals with insolvency. https://courttribunalfinder.service.gov.uk/

 

5. Do your witness statement (Form 6.5).

Here is a link to a template one, but DO NOT copy and paste it, read through it and tailor it to suit your particular needs http://www.consumeractiongroup.co.uk/forum/showthread.php?403882&p=4383239#post4383239

 

6. Take both forms, together with any exhibits to the court and have them sworn in. There is no need to book in, just turn up, but do check opening times.

 

7. You now need to wait to hear back from the Court with your hearing date.

 

8. Do your costs and submit them to court. You will need to submit them at least 24 hours before the hearing.

 

9. Remember sign nothing!

 

 

A. How to fill in form 6.4

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from (CREDITORS NAME) be set aside

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the witness statement of the applicant sworn on (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of CREDITOR/SOLICITOR)

 

For (e)

 

The applicant’s address for service is: (e) (insert your name and address)

 

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

[superstarjan]

Another question (sorry) I will be going to court at 10am to sign the form 6.4 and 6.5 in, so I'm going to print them out now, however, all of the witness statement doesn't fit on the sheet, do I just print the rest on plain paper?

 

Oh, and please will you cast your eyes over the witness statement citizen, in case i've made any daft mistakes? Many thanks!

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?406102-LEGAL-Form-6.4-amp-6.5-Application-to-set-a-side-a-Statutory-Demand

 

Stan, have you downloaded the forms 6.4 & 6.5 from our library ? If so, then you should be able to type directly (copy and paste ) into that and it should fit ok ?

 

The statutory time for complying with a CCA request is.. 12 working days + 2 for posting.

 

Just having a read of your statement.

[citizenB]

Thank you!

 

This is what I've got so far:-

 

1) Do not admit the debt is recoverable because the enforceability of the alleged debt is in dispute, the creditor’s right to demand immediate payment is also disputed at this juncture:

 

The Respondent alleges that I am indebted to it in the sum of £xxxxx being the amount outstanding under a financial agreement. It is further alleged that the debt was assigned to the respondent from a HBOS agreement to Lowell Portfolio. I submit that the statutory demand should be set-aside upon the following grounds: - (Make sure you pop your £ sum in )

 

2) It is believe that the Respondent’s use of a statutory demand is trite law and merely a scare tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of process. I believe the Respondent will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the insolvency Rules. The Respondent's letter accompanying the statutory demand included an invitation to make an offer. (Part of attachment "A") (Are you attaching anything - if not, remove reference to attachment. )

3) The Respondent has failed to provide a copy of the consumer credit agreement that contains the prescribed terms. Under section 78 (1) of the Consumer Credit Act. On 07.01.09, the Applicant made a request pursuant s78 (1) Consumer Credit Act 1974. The request was in writing and accompanied by the statutory one pound fee. Two separate requests were sent, recorded delivery and they were delivered on 12.01.09. The Applicant had to follow up this request with a reminder, some 14 days later. (See attachment "B) A further request, together with the one pound fee has been sent to Lowell Portfolio on 11.10.13, but they have also failed to provide a copy of the consumer credit agreement. (Again, if you are not attaching anything, remove reference to this. )

4) The Applicant refers the Court to s78 (6) Consumer Credit Act 1974 which precludes the Respondent from proceeding with bankruptcy while it remains in breach. In the event that the Respondent seeks to avoid its obligations by suggesting that as an assignee it has no duty to comply with s78, then the Respondent is referred to Jones v Link Financial Ltd [2012] EWHC 2402 (QB) (22 August 2012) which affirmed that the duty to comply with s78 transfers to the Respondent on assignment.

 

5) The Applicant refers the court to the judgment of Mr Justice Warren in the High Court in the case of Hammonds (a firm) v Pro-fit USA Ltd [2007] EWHC 1998 (Ch) at Para 27.

 

27. "So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner)."

 

In respect of judgment of Mr Justice Warren as set out above the applicant avers that there is a clear dispute in relation to this debt and furthermore the Respondent is aware of this.

 

6) There has been a failure to provide any Default notice in the prescribed form. It is denied that any Default notice in the prescribed format was ever received and the Applicant puts the Respondent to strict proof that said document in the prescribed format was delivered to the Applicant. Service of a default notice is a statutory requirement as laid out in sections 87, 88 and 89 of the Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement, therefore without a valid Default notice the Respondents case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974. The agreements have also been terminated.

 

7) Notwithstanding the above, the Respondent has failed to serve a Notice of Assignment in accordance with section 136(1) of the Law of Property Act 1925 which requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor. Section 196(4) of the Law of Property Act 1925 prescribes the requirements for giving sufficient notice by post:-

 

s196. Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

It is noted that by Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded or special delivery).

 

8) For the assignment of a debt to be effective and so giving the Respondent a right of action, a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to S196(4) before court action is commenced. It is denied that any Notice of Assignment was served on me and so the Respondent has no right of action. It is noted that the Respondent has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served.

 

9) In view of the matters pleaded above and that not all reasonable steps were taken by the Respondent before taking this action, the Applicant avers that the service of the Statutory Demand is demonstrably intimidatory and an abuse of process.

 

Judge Boggis QC – RE AWAN – [2000] BPIR 241

 

`In my judgement, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly`

 

10) The Applicant has not been provided with a statement of account showing how the sums said to be payable have accrued. The Applicant cannot even begin to consider what if any of the sums stated in the demand are payable, notwithstanding the points set out above, until the Respondent provides the aforesaid statements the Applicant is unable to consider any potential defence of set off that the Applicant may be able to raise.

 

11) It is clear that there are several triable issues and that these matters should be properly dealt with as a part 7 claim rather than the matter progressing via the Insolvency courts. The Applicant respectfully requests that the demand be set aside and the Respondent be ordered to pay the Applicants reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

Accordingly, the Applicant respectfully requests that the Statutory Demand be set aside and that the court award costs in this matter to the Applicant who is acting as a Litigant in Person. It is also requested that the court consider making an indemnity award in light of the upset and inconvenience that this has caused the Applicant.

 

No spelling errors that I can see

 

You will need to make 3 copies to take to the court. One they will stamp and hand back to you. One they will send to the Opposition and the other they will keep. Always a good idea to make an extra copy on a "JIC" contingency !!