cohen Statutory Demand situation credit card

[VIENNA]

Hi,

having recently received a Statutory Demand

I looked around the site for some relevant info.

 

I found this awesome post from tomterm8

and I have only just stopped laughing!!!!

 

Tomterm8 wrote-:

 

Dear XXXX,

 

RE: STATUTORY DEMAND SERVED DATE

 

Thank you for your letter dated XXth.

 

For your information, as someone with £XX,XXX assets, and debts of £XX,XXX,

I have been advised by the National debt Line that it would be in my interests to file for bankruptcy.

 

Due to my precarious financial situation, I have been unable to raise the finance to do so.

 

I would therefore like to thank you for offering to pay this substantial bill

- £1,100 I believe, with no prospect of ever recieving a return on your investment.

 

For your convenience, I waive the 21 days normally required before you file for bankruptcy.

 

There is no chance that i will be able to enter into any agreement with you for the repayment of this money.

 

Yours sincerly,

 

XXX.

:D

 

I applied for set-aside and later received a letter confirming withdrawal of the demand.

 

My question is that in this letter it states that both parties need to confirm to the court that the demand is withdrawn by consent on terms that there will be no order for costs.

 

However I have been put to certain costs so any advice as to how to proceed?

 

cheers.

[2Grumpy]

Is withdrawn different to set aside?

 

Does that mean that they can try again later?

 

(Just a thought that it might be better to say no so that it can actually get set aside)

 

This looks like a cheap way out for a DCA who is going to lose compared with a set-aside hearing, especially if they can re-file or go for a CCJ later.

 

Grumpy

[VIENNA]

Hi Grumpy,

 

If the demand is withdrawn then the hearing is cancelled

I presume there is no set aside because there is nothing to set aside.

 

 

However, am I wrong to assume that they should inform the court of withdrawal and do not need my agreement to do so?

Are they simply trying to avoid costs and if so is it possible for me to obtain costs if there is no hearing?

 

I presume that they can try again but I'm not sure.

[42man]

Hi Vienna....can you give us a little more information on the situation, what are they claiming you owe (don't be too specific) ? what is the alleged debt for ? and what have you sent them ? what have they sent you so far ?.... Why have they withdrawn ? Is there a date set ?

[VIENNA]

Hi 42man,

the claim is for a credit card

but they have failed to comply with my cca request but still issued this demand

 

. A date is set for next month [ after I applied for set aside]

 

then I received a letter stating their withdrawal and that I should contact them to agree to no costs and then our mutual consent would be forwarded to the court.

[42man]

Hmmm very interesting, to be honest i'm not sure what the best thing would be to do....you could write to them and indicate that you will see them in court and claim full costs, or you could write and say that you are willing to agree to withdraw if they pay your costs to date + removal of any adverse data on your credit files that they may have put against your name. Or if you're feeling extra generous then you can say you will withdraw if they remove all the adverse data they have put on your credit files (but get everything in writing)....

[VIENNA]

I'm actually not feeling that generous at all!!

 

I'm thinking that their abuse of process has them worried,

but never having dealt with a stat demand before I wasn't sure if a withdrawal was normally concluded in this way or if in fact once they withdraw the matter is closed as far as the court is concerned.

 

However as I am the one who has applied for set aside is it up to me,

given that they have informed me of withdrawal,

to inform the court they have withdrawn?

[42man]

Vienna, it might be worth calling a local solicitor (or getting several opinions)

[VIENNA]

Thanks 42man, I have an appointment with a solicitor next week, so we'll see what he thinks.

[42man]

Make sure he knows about the Consumer Credit Act too (or enlighten him if need be), I saw a solicitor about my own situation a while back and I knew more about the Consumer Credit Act than he did.....

[VIENNA]

Don't worry, thanks to everyone on here I'll be able to give him chapter and verse!!

[VIENNA]

Update!

 

My meeting with the sols was virtually a waste of time, he even told me that I would not be able to ask for costs! [Goodjob it was free].

 

onto the Hearing

, I simply explained my situation to the Judge,

who was quite helpful,

and said he had received a letter from the sols regarding mutual agreement as to costs.

 

He asked me if this was acceptable if he agreed to the set-aside and I said no!! :o

 

I explained my reasoning and he suggested a figure he would consider awarding me:shock: ,

 

I agreed with this figure and said it would be a fair amount.

 

They never turned up,

so I was in and out in minutes:)

[nicklea]

Hi Vienna,

 

That’s very encouraging news, as I have my own set aside hearing coming up in a couple of weeks time and I’ve been wondering about costs as well.

 

For anybody else that’s interested I did find out some case law in this area, although it is more about companies than individuals.

When a ltd company is faced with a statutory demand and then a winding up petition then it can only go ahead if there isn’t a genuine substantial dispute about the debt. This is (as far as I can see) exactly the same thing as the Set Aside hearing for an individual in that if there is a genuine dispute then there cannot be a bankruptcy petition.

 

The authority for this is Stonegate Securities Ltd v Gregory (1980) 1 Ch., (1980) A11 ER (1980) 3 WLR CA. This was confirmed last year in Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch) (17 August 2007) where the judge said:-

 

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).

 

I understand that, normally, it is very rare in civil cases for an indemnity costs order to be made, but obviously, in these types of cases it is quite common.

 

Any comments from the more knowledgeable legal people here would be welcome

 

Regards

 

nicklea

[42man]

Great result Vienna !!! very pleased for you...

[pugsley]

well done well worth turning up and a warning shot to these companies that sd's are not to be used as confetti:)

[VIENNA]

Any advice please?

 

I have not received the costs I had awarded:confused:

 

Should I contact the company direct and/or inform the court?

[Boro]

How long has the court given them to pay up? if they have set down a time frame allow it to run then if they dont pay up ask the court to enforce it

[ODC]

Vienna was this DCA Lowells by any chance

[PossVox]

subscribing

[VIENNA]

Hi,

the Court allowed 14 days for payment to be made directly to myself and this time is now up:confused:

 

It wasn't Lowells:eek:

 

 

Enforcement you say? Sounds good to me:roll:

[forumreg1]

Same situation as you. Awarded costs and they haven;t paid. I'm tempted to go the "order to provide information" route first. This is wehere the court ordrs them to send a company officer to provide information so as you can work out the best way of getting your money. It seems if they fail to appear they can go to jail!. Once you understand the financial structure of the DCA you can get a court order to seize assetts i think

[pugsley]

ask the court what to do, I know they will send the bailiffs into the DCA if they do not pay, wouldn't that be nice:D

[tiglet]

Did you guys ever get your costs paid?

[Multay]

or did you send the baliffs in???????

[VIENNA]

I think its possible that Mr Cohen has contracted swine flu................................or maybe he has sunstroke, whatever is affecting his memory he has failed to pay my costs. Oh well, it was only a Court Order, why would he bother about that:rolleyes: