Made Bankrupt - how to overturn it?

[seylectric]

Can't afford to wait too long though, the 28 days in which I have to file my appeal is up on Wednesday, and I don't have a lot of time otherwise to deal with this at the moment, that's why I wanted the papers on Friday to give me the weekend to go over them.

 

I (or my partner anyways) have definately been stitched up. looking good for an appeal if they can't even produce any paperwork at all. I just don't want to get stitched up again when it goes back to court for the appeal hearing when they magically produce the the relevant paperwork that so far I have not seen and doesn't appear at this stage to exist.

 

Wish I could find a decent solicitor that can deal with this.

[Movingon]

Hang in there Sey - looks like you can win this one.

[bottomburp]

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[seylectric]

Thanks SL, bb.

 

Went back to the court office today, still no papers so I insisted that I wasn't leaving until they were found given the gravity, for us, of the situation. I went away with a promise to either find them by tomorrow lunchtime or a letter from the court office stating that there was no paperwork.

 

However I got a phone call an hour later telling me that they had found the papers - not so good as it seems that in fact there is amoungst them an application form for substituted service. They phoned me 10 minutes before closing so I can't get them until tomorrow morning but I'm going ahead with the appeal anyway.

 

I had drafted somthing similar to the above but including the misdescription of our house (terraced not semi) and the mystery 55-year old, in addition to the fact that we have never received any documentation and a subsequent request to the council for all paperwork relating to our council tax account has, to date, prioduced nothing. I will also point out that we would have been in a position to pay the debt in full prior to the date of the hearing had we known about it at the time - the only flaw in this is that the originalhearing was apparently in June, adjourned because we were not there, and back in June we would NOT have been in a position to pay it.

 

One other point worthy of note is that Incasso have never at any point tried to contact us with regard to reaching a settlement as far as I am aware, they have been contacted by the council with a view to recovering the debt and seemingly have gone straight ahead with the bankrupcy application.

 

I'm not sure how good a case we have but I have to at least try.

[bottomburp]

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[seylectric]

No, the court hasn't come up with an explanation but I will be pointing the fact out that the papers I was given the first time around were, well, those that you saw!

 

Re. The solicitors you mentioned earlier, I haven't contacted them yet, the fact that everyone I have spoken to seemed to think we had no chance and the fees being quoted for what might be a lost cause put me off to a point, although I do feel we will need some expert help at some point.

[bottomburp]

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[seylectric]

Sounds like a good idea, although if, as it now seems, they do have a copy of the application for substituted service order it might be largely irrelevant as we will now be relying on the fact that we didn't receive the docs originally rather than the fact that they didn't file the above application in the first instance.

[bottomburp]

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[seylectric]

Good point!

[seylectric]

This is ridiculous!

 

I have the copies of several items from the court office, seven pages in all, 6 of which were NOT given to me after my first written request for ALL documentation relating to the case.

 

The first one is a copy of the request for a substituted service order dated 20th September together with an application for "An order that the time for the hearing of the bankrupcy petition be extended for 42 days on the grounds that it has not been possible to meet the Debtor to effect service despite attempts to do so and the costs of this application be provided for"

 

The second sheet is a copy of order, with a final sentence stating that "The bankrupcy petition be adjourned to the 22nd November 2006" etc, but again there is no sig although it is dated at the top of the letter (29th September 2006)

 

There is then a "Certificate of unpaid debt", which reads "I certify that enquiries have been made of the petitioner, Blackpool Council, within the last business day prior to the hearing and to the best of my knowledge and belief the debt on which the petition is founded is still due and has not been paid or secured or compouinded for." Dated 21 November.

 

I'm furious about this because no mention is made of the fact that offers of payment WERE made to the council, although sadly I have nothing in writing except for one letter I sent several moths ago. Could this have affected the judgement?

 

The final document is a "LIST OF CREDITORS INTENDING TO APPEAR ON THE HEARING OF THE BANKRUPCY PETITION", dated 22 November, the date of the bankrupcy hearing.

 

It reads, "The following creditors have given notice that they intend to appear on the hearing (etc.)

 

There are no supporting or opposing Creditors."

 

 

Huh? So that means that the creditors didn't appear to support their application, although I don't suppose there is any getting away from the fact that (presumably) the creditors, Blackpool Council in this case, were represented at the court by Incasso?

 

All in all it seems that all I can do is file an appeal on the basis that we did not receive the relevant documentation and so were not able to defend the case as is our right, and that the fact that offers of payment made prior to the case were not taken into consideration, with the emphasis that we would have been in a postion to repay the debt had we been given the opportunity to do so. Doesn't seem like much but it's all we have.

[Movingon]

Plus the fact that their assertion that they repeatedly tried to contact your partner (and their evidence supporting their supposed visit to your house) is pure fabrication...?

[seylectric]

I've just remembered something! I might have an ace up my sleeve here!

 

On the 8th of June we applied for a secured loan to restructure our finances, and were granted a 10k advance but didn't go ahead with it at the time partly because we couldn't get a reply from the council in relation to paying them off.

 

Given that the Statutory Demand (which we never saw) wasn't served until the 28th of June, three weeks later, this must prove that we were in a position to repay the debt, and more importantly took steps to do so but were denied the opportunity to do so BEFORE any action was taken! This surely has to be a solid argument for the case that the bankrupcy should never have been granted in the first place, or am I just clutching at straws here?

 

I will need to ask the loan company for proof that we applied (I have just phoned them and they have said it won't be a problem if I put the request in writing) but it could be the most valuable document we have yet!

[seylectric]

Plus the fact that their assertion that they repeatedly tried to contact your partner (and their evidence supporting their supposed visit to your house) is pure fabrication...?

 

Yes but the only fault with that is that every solicitor I have spoken to has said that it is unlikely that the judge will believe that we haven't received ANY documentation, and that the witness only has to state in court that he made a mistake. In my opinion that's complete b'locks since what he said on oath should be legally binding, but that's what we have been told!

[bottomburp]

Please send them through to me. Thanks.

[seylectric]

Ok my damn scanner program is playing up but I'll hold on that for the moment.

 

I've found an insolvency lawyer that seems to be agreeing what we have all been saying all along - that the bankrupcy should never have happened and we need to have it annuled on that basis. He comes on a recommendation and having spoken to him for over an hour, he obviously knows his stuff and is very thorough.

 

I'm more than happy to pass the case on to him. He says that there is no way the original Stat Demand was served legally because it was pushed through the letterbox, that we have a good case given that we have previously offered payment and it was rejected, and that - as I have said all along - the process server clearly misdescribed our propety ON OATH and that simply claiming that he "made a mistake" will not be good enough.

 

He is clear, precise, in your face and more importantly is definately speaking my language. He estimates his fees will be around 2k, but it will be a set price, and will be pushing for those to be paid by the council too although he says there is a fair chance that will be rejected by the courts but i'm happy enough with that under the circumstances.

 

He also claims that should the appeal fail an IVA would be a much cheaper option than what the other lot were suggesting. We might just be getting somewhere at last!

[bottomburp]

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[seylectric]

That's OK, I know it's a long way from being cut and dried yet but this is definately a swing back in our favour.

 

The way I understand it is this: As far as the lawyer was concerned the substituted service thing was in order for the bankrupcy petition so not much point in going into that any further. However the MOST IMPORTANT document in this case is NOT the bankrupcy petition that we have been concentrating on, but the Statutory Demand, because without the SD the bankrupcy petition cannot be issued. Now BY HIS OWN ADMISSION the process server on his second visit and WITHOUT leave from the court to do so, pushed the SD through the letterbox!

 

This is on page 5 of the copy I sent you, item 5: Witness statement of the process server: "On Thursday 6 July 2006 a Statutory Demand was served upon the debtor by letterbox insertion on Wednesday 28 June 2006 after 1700 hours in respect of the above mentioned debt."

 

This sentence in itself is contradictory anyway; was it served on Thursday 6 July or Wednesday 28 June?

 

In his statement (page 10, last sentence) he goes on to say (regarding the serving of the SD), "It is my duty to inform you that in the event of a Bankruptcy Petition being presented, the court will be asked to treat such letterbox service as service of a Statutory Demand on you, the Debtor."

 

So he is effectively asking the court to accept that it has been served because he pushed it through the letterbox BEFORE he had got verification from the court that it was OK to do so, rather than obtain the court's blessing before he issued it!

 

According to the lawyer he can't do this! Much more effort has to be taken than to simply push an SD through a letterbox on a second visit, it just isn't good enough. Furthermore, remember this bit:

 

"It is my duty to inform you that in the event of a Bankruptcy Petition being presented, the court will be asked to treat such letterbox service as service of a Statutory Demand on you, the Debtor." I can't see anything in the documentation given to me by the courts that there is any evidence that he indeed did ask the courts to treat his actions as service of the SD, albeit after the event anyway.

 

This lawyer seems to know what he is talking about and it certainly seems to make sense when you look through the documentation - we didn't receive the SD and the process server can't prove otherwise and didn't have the permission of the courts for letterbox service hence the bankruptcy hearing should never have taken place!

[Movingon]

Fantastic Sey!! w00000t!!!

[Seminole]

I'd like to think that this is correct but it's certainly not unknown for DCAs to send out SDs by post. It could well be that they do this because they don't have the slightest intention of following it through with a petition.

[Movingon]

I'd like to add that getting a Solicitor onside is probably the most positive thing that you have seen so far. Hang on to him - and if he gets run over by a bus, bloody HAUNT him later!!

[bottomburp]

This is all excellent news and I'm really pleased that you're making good progress.

 

Don't forget that you need to file your appeal docs tomorrow...

 

Yes, I am bossy! Sometimes!

[seylectric]

I'd like to add that getting a Solicitor onside is probably the most positive thing that you have seen so far. Hang on to him - and if he gets run over by a bus, bloody HAUNT him later!!

 

Believe me, i've tried to find one. It hasn't been easy finding the RIGHT one!

 

This guy has assured me that he will be securing a meeting with Blackpool council prior to any appeal and will be asking them "some bloody awkward questions" - from his tone I can tell that this guy means business too.

 

BB, apparently the time limit for appeals is 14 days but he insists it isn't a problem given that the bankrupcy should never have happened in the first place, and I have every confidence in him. His last words were "Don't screw your head up any more with this, I'll deal with it, it's what I do and it's all I do".

 

That'll do for me!

[bottomburp]

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[bottomburp]

Hi Seylectric, Just wondering how you're getting on?