Help please -with replying to strike out a SD sent by email

[HP Mum]

I have long-standing legal issues with a lender.  Proceedings are heading to trial,  yet the lender has just appointed a different law firm to try to serve a SD on me via a different location court.   Tiresome. 

They have used form: "Rule 10.1, SD2, SD under S.268(1)(a) of the Insolvency Act 1986 - debt for liquidated sum payable immediately".

The lawyers have not served me in person, just emailed (without consent).  Their claim alleges a lot of things that are factually wrong.  So I want to apply to the court to get it set aside immediately (before proper service).

I have never responded to a SD before.  The lender tried to serve one 4-5y ago. Somehow they managed to issue a back-door B petition - but I got a lawyer briefly involved and it got struck out for being in breach of the Insolvency Act (they failed to say £s secured on a property).  I have no means to pay a lawyer now.

I see that I need to use form 1AA.  I need some help please in how to fill it in.  And am asking please if there are specific sections or rules  of the 1986 Act (or 2016?) that I can quote as to why the SD should be set aside?

In simple layman terms my points are: a) I am in  long-running proceedings in respect of the precise subject matter in the SD, b) these matters are in a different court, c) issuing of this SD is being used to sidestep (circumvent) those proceedings, d) if C wants to make an additional claim they should make it via on-going claim in that court, which is the proper venue, e) the basis of C's claim and the sum is in dispute, e) I have a fully pleaded defence and counter-claim, f) the sum is fully secured.

The lender is an idiot.  They repossessed a lovely property 5y ago and in all this time they have failed to sell it. I won't go into all they did, but it forms my D&CC.  They are trying to add 5y interest, legal costs and other costs due to their own stupidity. This new SD again alleges the sum is unsecured - due to all their costs in 5y - which is why they allege it's a "debt for liquidated sum payable immediately".   It isn't. 

The irony is that one week after they emailed this SD, I made an application to strike out their claim/ trial.  I had found 'something' in their disclosure and had already spent a month researching the legal consequences of it.   The 'something' and evidence submitted are pretty catastrophic for their claim and this SD.   Which is why I am trying to deal with the SD and get it set-aside immediately.

Do I need to present a huge bundle with a long witness statement to the court attached to the form 1AA?   Or just keep the facts brief and concise in a short w-s and small bundle?

Hope someone can advise.  Thanks

 

[honeybee13]

Hi.

Could you possibly point us to a previous thread/s about this lender please? It would help enormously for those who try to advise.

HB

[HP Mum]

I have never mentioned the lender.  And the situation is so convoluted  that I think it best to keep this question separate.  Can I do that?  And maybe merge it later (when I have successfully despatched them!)

 

[honeybee13]

If anyone is able to advise, I'm not sure why you think they can do it without knowing the history. Your choice though.

HB

[HP Mum]

Thanks honeybee.   Its just i have been through so much and one of the team merged all my posts - so the situation could be really confusing. (It was entitled something like 'LH/FH and all my issues' but honestly I am not sure reading that will help this question?)

I will elaborate though on the 'something'.  

I borrowed money. I defaulted.

There were 2 loans - and A loan got assigned to B loan and the deed was registered at Land Reg - more than 6y ago.   

B became the Claimant and issued possession proceedings. 

As a stop gap I paid some £s towards the debt via a consent order.  But B still repossessed 5y ago.  B has failed to sell the property. 2y ago B issued a MoneyClaim - the current proceedings heading to trial. 

Fine-toothing the evidence I noticed that A was never properly assigned to B.  The deed was wrong, the Land Reg registration was wrong.  B had issued possession proceedings on a sum of money they were not entitled to - and gained possession. 

B then issued the MoneyClaim on a consolidated sum they are not entitled to. 

Digging further into old legal correspondence I discovered B's lawyer had tried to hide the evidence of his wrong assignment.  This lawyer was sacked from the firm soon after for misconduct (published articles).  I have used this evidence to ask for strike out of the claim.  I want to use the same evidence to set aside the SD.   I just don't want to submit too much paperwork on asking the court to set-aside the SD.

As an aside - A got bought out/ consolidated by another company 2y ago.  Am wondering if, as the debt was never chased and is more than 6y ago, is it also statute barred?

There is a further issue that I am wondering - can I query the possession?

re form 1AA: I am struggling to fill in the below box.  The SD is issued by law firm under s.268(1)(a) 1986 - do I just copy this?  Am I asking court to set aside under this Act due to xyz reasons that I will then write?

Delete/complete as applicable

This application is made under section […] of [AND/OR paragraph […] of Schedule […] to] the Insolvency Act 1986 [AND/OR under rule […] of the Insolvency (England and Wales) Rules 2016].

Edited February 1 by HP Mum

[honeybee13]

I wonder if it might help if you show us a copy of the form and tell us what answers you're thinking of putting and why.

HB

[dx100uk]

its worthy to note that an SD like any other court claim, cannot be issued by email unless you have specifically stated in writing that the claimant is allowed too.

i know you say you want to jump the gun and get it sorted before they serve it properly, which must be by a process server in person, or if they have tried that and have proof they've tried it, by royal mail.

this could be an attempt to divert you away from concentrating upon more important claims you have with them.?

most of the SD's we see here are simply threats and they never follow them through.

just remember anyone can download an SD form and send it as a threat, the court knows nothing about it unless they actually go for BK and raise a court claim, then you have 18 or 21 days i cant remember to ACTUALLY respond

 

dx

[HP Mum]

Thanks dx   Yes I get that.   And no I have not given this law firm consent to serve me personally by email. 

This law firm was appointed by the lender to try grab the freehold.  So I have communicated with them wearing my hat as trustee for the freeholders - but using a different email address specifically for that purpose.  The law firm also sent the SD to the freeholders email address. But this incorrect - as the lender has no debt claim against the freeholders. 

The law firm sent the SD to my personal email, but I have never communicated with them personally - only as trustee freeholder via the freeholders email address. 

I have been told they sent a process server to the home address of another trustee for the freeholders -but as I don't live there the process server would have reported that. 

The repossessed property remains my registered address - as they made me homeless. I have not had an alternative permanent registered address since.  They know they can't serve me there.   

The only caveat I have is that the lender may state they know I have received the email.  This is because in a knee-jerk reaction I asked the lawyer handling the claim/ trial what the lender was doing.  He claimed to know nothing about the SD and asked me to email him a copy.  Which I (stupidly) did.   The lender could now claim I have had sight of the SD?

The important issue is getting the claim/ trial struck out.  The lawyer handling this wants to discuss this next week.  Im trying to find a lawyer or barrister to help

 

Edited February 1 by HP Mum

[dx100uk]

there is NO CLAIM or TRIAL to be struck out.

read what i said CAREFULLY no court knows anything about SD's -  they have no role in its issuance and wont until/unless the claimant carries out their threatened BK claim IN A COURT, and of that the court will inform you ....it's a GAG it's a scam . very very common, 

SD's cannot be served by email and even if you do ack you've seen one, as you have by email to them, it still doesn't make it 'official' 

 

[HP Mum]

For the moment I am focusing on preparing a response to the SD (even if I delay sending it).   

The immediate query i have is under what section of 1986 IA or rules under 2016 IA do I submit my application?   

The C made their SD claim under s268 as if the debt is unsecured and payable immediately. 

I want to say it is secured and their SD is an abuse of process due to the on-going proceedings in a different court where I have a counterclaim.

I have done a bit of research. 

The rules under 2016 IA 10.5(5) seem like they could apply? 

(5) The court may grant the application if—

(a)the debtor appears to have a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt specified in the statutory demand;

(b)the debt is disputed on grounds which appear to the court to be substantial;

(c)it appears that the creditor holds some security in relation to the debt claimed by the demand, and either rule 10.1(9) is not complied with in relation to it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt; or

(d)the court is satisfied, on other grounds, that the demand ought to be set aside.

I can't see what sections under the 1986 IA could apply?   Maybe s.267(2)?

s.267(2) Subject to the next three sections, a creditor’s petition may be presented to the court in respect of a debt or debts only if, at the time the petition is presented—

(a)the amount of the debt, or the aggregate amount of the debts, is equal to or exceeds the bankruptcy level,

(b)the debt, or each of the debts, is for a liquidated sum payable to the petitioning creditor, or one or more of the petitioning creditors, either immediately or at some certain, future time, and is unsecured,

(c)the debt, or each of the debts, is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay, and

(d)there is no outstanding application to set aside a statutory demand served (under section 268 below) in respect of the debt or any of the debts.

Maybe (2)(b) because the sum is fully secured, (c) because there will be enough equity to clear the debt once the property is sold? and (d) because I am making an application to set aside the SD ?

Sorry dx I missed your reply above

I was in the midst of preparing for trial re the debt claim by same lender in different court.

Until I realised the assignment issue.

The lawyer was straight on the phone the day I submitted the strike out application to discuss w/o prejudice   

They are in a hole - I think - with that claim

Sorry - perhaps I wasn't clear -

I AM in the middle of a claim scheduled for trial later this year.

The lender has tried to sneak in this SD via different law firm and via a different court

- for intimidation and, as dx said, to try distract me from preparing for trial deadlines. 

They are trying everything they can to avoid going to trial.

They have wasted so much money and their public reputation will be shredded if it goes to trial. 

They did not expect me to apply to strike out their existing claim. 

I do need to focus on finding a pro-bono lawyer/ counsel to help me get closure next week, based on my discovery

Can anyone advise about statute barred debt?

If a loan was secured on a property but purported to have been assigned to another lender - but actually never was - and that loan has not been chased for more than 6 years and the original lender has been bought out by a different company - is it statute-barred? 

Or would there be different rules because it was 'secured'? 

Because it was purportedly assigned >6y ago I have no idea how their accounts/ book keeping would record the sum of money?  

[dx100uk]

a secured loan cannot be statute barred if you still own the property the loan was secured upon.

if you no longer own the property the secured loan was secured against, then the loan is no longer a secured loan as the asset is no longer part of your estate. 

it could then be argued that the statute barred clock would then run from the date you 'lost' the property or p'haps even the last time YOU actually paid anything toward it balance.

you are mentioning many things in your posts and AGAIN this is all linked to your merged thread about the whole sad sad issue and all it's 'branches' which are all linked together one way or another.

you do realise that a statutory demand CANNOT be issued against any debt that is already subject to any type of on going court claim...including property assets? 

its a distraction and i'd even go so far as to say whomever issued it has done so in shear desperation and they haven't a CLUE what they are doing overall as they know their whole tower of cards is about to fall upon them.

 

[HP Mum]

Thanks dx.   

I only really came on here to ask how to reply to the SD.  I think, dx, you have answered that.   Plus I checked part 10.5(5) (a-d) rules of the IA 2016 - this indicates the creditor can't issue a SD whilst I have a counterclaim in a different ongoing claim.  So - they haven't served me properly, and the SD is invalid due to proceedings in other court with a counterclaim.  I will ignore for the moment

Dx - I think you are correct about the chaos. 

With regards to my other question about can a loan be statute-barred:  my query relates to only one of two lenders that lent £s

I am still registered as leaseholder, but not in possession.   

The original lease has ceased to exist due to a recent lease extension (which creates a new title).

I never paid a penny to either of the 2 lenders (rolled up interest was supposed to be paid upon sale - it hasn't sold).

The 1st lender purported to assign the loan to the 2nd lender - only it wasn't done properly.

This 1st lender was subject to being bought out/ part of a consolidation 2y ago.  It is still a live company registered at Co House, but y/e account notes state it is only being kept open until its loan book is closed.  Given my loan was purported to have been assigned >6y ago, there is an assumption my loan is not still on their loan book??

a) the 1st lender never received £s, b) the original lease title on which they had a charge doesn't exist, c) this 1st lender has been consolidated into a different entity d) the 1st lender £s were never assigned correctly.  Is there a possibility that this 1st loan cant now be claimed at all, due to all these points?

 

[AndyOrch]

On 01/02/2024 at 23:39, dx100uk said:

a secured loan cannot be statute barred if you still own the property the loan was secured upon.

Mmmm  it can if no payment was made for a period of 6/12 years subject to type of secured loan and whether the debt is linked to interest or capital. Although given this type of loan I'm sure the creditor would have taken the necessary action pre SB to enforce its security.

But technically subject to the finer details it is possible.

With regards to the SD a SD cannot be issued if the creditor already holds security on the debt.(Which I assume they would in this instance)

 

.

[HP Mum]

Re the secured loan - the point is the 1st lender never took action to enforce its security.  I never paid them a penny.  The loan was charged against a property - the sum loaned was for a fixed period for a fixed amount of interest - unless I redeemed early.  Upon redemption the lender would have received the loan sum back plus the fixed interest.  The alleged assignment was >6y ago

The 1st lender's loan was allegedly assigned to another 2nd lender - who then became the claimant in legal proceedings trying to enforce the consolidated sum.

The issue is the 1st lender - the assignor - never assigned its loan properly to the 2nd lender - the assignee.  In effect the assignment never happened - it's not an absolute legal assignment.

The 2nd lender - the assignee - was the lender who issued a claim v me.   But they issued the claim based on the full consolidated sum - to which they aren't entitled.

The 2nd lender - the assignee - is only entitled to claim the sum they lent me (plus interest, costs etc, less my counterclaim for damages etc).  They are not entitled to claim the 1st lender's loan.   Then because the lease has ceased (new title), the 1st lender been bought out, >6y passed w/o any payment by me - this is why I'm wondering if the 1st lender £s are statute barred ??

.

Re: the SD the claimant is alleging there is no security left due to 5y of interest accrued (their failure to sell/ not mine).  But ... they raised the SD before I snuck in my own application to strike out their whole claim.  The assignment issue has effectively reduced my debt (means they have to start a new claim?).  In the SD papers the claimant alleges the property's worth.  Which effectively means there remains huge equity in my favour - thus the claimant is a secured creditor.

The 2 separate issues are entwined

Just for clarity - in 6y not one lawyer or barrister has picked up on this issue.  I'm the only one that noticed the discrepancy (recently)

Edited February 7 by HP Mum

[HP Mum]

On the issues as a whole - seriously how can any lender fail to sell a nice property in so many years!   The things they have done, continue to do are astounding.  They didn't even market it for sale for 3y.  They have tried to charge the cost of unnecessary works to me (done to an employee's taste (the ceo!)).  Bottom line - they don't want to sell it; they want to keep it - that's been proven thru legal disclosure.  They just expected me to give in to their bullying aggression.  I haven't. And now I've hit back to invalidate their whole claim, which they didn't expect and must be furious about !! 

Edited February 7 by HP Mum
Typo