Stautory Demands - An Update And More Help Please!

[SHERLOCK]

Hiya Toddle, nice 2 C U again.

 

Connaught again, very busy with their SD's at the moment.

Get off the CCA and S.A.R - (Subject Access Request), put the alleged debt in dispute and sort out the refund claim, I suggest with contractual interest to get as much off the debt as possible.

 

I would suggest even though some may frown, to offer a token payment to 1st Credit until such time the dispute is settled. (only my opinion, depends wot U have to lose??)

 

As a reference, Process Server fees are around £75.00 + vat plus affidavit/statement of service £30.00 + vat (£150.00'ish all in, served or not)

 

You can see with non service, substituted service, court fees etc. its getting costly, bankruptcy would be a last resort, BUT, it is their prerogative!!

 

Also check your letters, was it definitely a SD, OR does it state that it is their intention to issue a SD, very different meaning.

[toddle2u]

Sherlock - the pleasure is mine.

It is pleasing to know that someone actually knows what they are talking about with SD's like yourself as I have seen some very bad advice with regards to them.

Norfolkboy got an SD through the post - therefore not served correctly.

Incidentally - would making token payments mean an admission of the debt?

[payingonlyencouragesthem]

Sherlock - the pleasure is mine.

It is pleasing to know that someone actually knows what they are talking about with SD's like yourself as I have seen some very bad advice with regards to them.

Norfolkboy got an SD through the post - therefore not served correctly.

Incidentally - would making token payments mean an admission of the debt?

 

Quality advice alert!!! SD's seem to be becoming the nuisance threat of choice with some DCA's. They definitely do have to be served in person by a process server to comply with the Insolvency Rules. End of.

[SHERLOCK]

Again, the SD, the creditor is under an obligation to do all that is reasonable to bring the SD to the debtors attention - this does not imply they have to be served personally on the debtor.

 

Where it is not possible to effect prompt personal service, this may be effected by other means such as first class post or insertion through a letterbox - again, it would appear that the creditors could hide behind this statement, especially as they might be 200 miles away and is for the judge to decide.

If you think Process Servers are running around the UK chasing debtors you are mistaken.

 

3 attempts at personal service (at the office, work, bank etc).will be deemed sufficient to effect service by other means, thus placing an affidavit with the courts for permission to seek substituted service.

 

It is the bankruptcy petition that follows the SD that will be served personally by an Officer of the Court, but the procedure still allows for substituted service should the debtor be deemed to be avoiding the service,

[payingonlyencouragesthem]

Sherlock you may be right but I was under the impression that it is almost physically impossible to bankrupt somebody without their knowledge and/or participation. If there is is clear evidence that somebody has deliberately and consistently evaded SD service then the court may accept first class mail/direct postage as substitute service but I understand that this is rare. Courts as a general principal want to hear both sides of the story.

[rbrears]

One thing that has not been mentioned is this. If PART of a debt on an SD is in dispute but the undisputed balance still exceeds £750 (the bankruptcy limit) then the debtor can still be made bankrupt notwithstanding the dispute about part of the debt because the undisputed part is still enough for a bankruptcy petition to be issued.

 

Hence if there are charges that one wishes to challenge included in a debt for which a SD is served, unless those charges constitute enough of the debt to take the undisputed amount under £750, bankruptcy is still possible - based on the original SD served for the whole amount.

 

As to service a SD can be served by post and an order for substituted service is not required, although an affidavit from the person serving is required giving evidence that would justify such an order.

 

The usual process goes like this:

 

1. Attempts to serve the debtor personally maybe two-three times.

2. Letter to the debtor from the server stasting that the server will re-attend at the relevant place on such and such a time on such and such a date to serve the SD.

3. Server attends as per appointment letter. If debtor there - personal service. If not the SD gets put through the letterbox or is posted first class post.

4. As long as these things are done and an affidavit filed at court swervice will be deemed to have been properly effected.

[Gingerheid]

Sherlock you may be right but I was under the impression that it is almost physically impossible to bankrupt somebody without their knowledge and/or participation. If there is is clear evidence that somebody has deliberately and consistently evaded SD service then the court may accept first class mail/direct postage as substitute service but I understand that this is rare. Courts as a general principal want to hear both sides of the story.

 

This might be how the legislation reads, or even how it is intended to work. But I can assure you that it is not how it works in practice. The process server can say they confirmed residence because a man walking their dog down the street said you live there, and then post it!

 

In more general terms, the person who received a SD posted through the door needs to think about the risks and what they have to lose (or even gain; lots of people pay good money to make themselves bankrupt!!!), and whether their circumstances make them think it likely that a creditor would pursue the action.

 

To end up on court arguing whether a stat demand is valid because you phoned them and told them they gave it to you the wrong way is risky.

 

There are cases that would support your argument - indeed one decided in 2000 takes it a step further and stated that the creditor should have tried to personally visit a known trading address as well as the home address.

 

However there has also been a case where it was ruled that it was adequate in the given circumstances for a creditor to post a stat demand to the debtor.

 

And furthermore - there has been a case where it has been rules that just because a demand is defective that does not mean that it will be set aside.

 

In the long run... if you do have something to lose why take the risk?

[SHERLOCK]

Some debtors, and indeed repeat offenders, do try to runaway from service, some are sat at home in the same armchair they've had for the last 15 years - the law process has to be the same for both.

 

Importantly, on seeking to launch a bankruptcy petition, the onus is on the creditor to prove the debtors inability to pay a particular debt by reference to an unsatisfied levy of execution upon a judgement or by non-compliance with a statutory demand.

 

The preparation of the SD is is not the concern of the process server, this is prepared by the creditor on his behalf.

 

An instance is where a debtor claims not to have received the service, happened it was his brother of the same name , the debtor stands in court and states this, fine, following the hearing the debtor is duly served with the papers and wot has he gained.........21 days

 

I am not here to preach, nor could I, it really comes down to your own situation, how you deal with the stuff they throw at you, and through our experiences to pass on advice.....whether people act on it is another matter.

[toddle2u]

Sherlock - I think you have hit the nail on the head perfectly

Toddle

[payingonlyencouragesthem]

Some debtors, and indeed repeat offenders, do try to runaway from service, some are sat at home in the same armchair they've had for the last 15 years - the law process has to be the same for both.

 

Importantly, on seeking to launch a bankruptcy petition, the onus is on the creditor to prove the debtors inability to pay a particular debt by reference to an unsatisfied levy of execution upon a judgement or by non-compliance with a statutory demand.

 

The preparation of the SD is is not the concern of the process server, this is prepared by the creditor on his behalf.

 

An instance is where a debtor claims not to have received the service, happened it was his brother of the same name , the debtor stands in court and states this, fine, following the hearing the debtor is duly served with the papers and wot has he gained.........21 days

 

I am not here to preach, nor could I, it really comes down to your own situation, how you deal with the stuff they throw at you, and through our experiences to pass on advice.....whether people act on it is another matter.

 

Sherlock you have drilled down the point admirably in a manner worthy of your namesake:-). The point I was inarticulately trying to make is that DCA's are using these bogus SD's as scare tactics. I don't think any DCA has any intention of offering free bankruptcy proceedings with every default:grin:

[mrshnn]

my wife has had a stat demand from legal and receivables,we have now got 21 days and we have not replied or had it st aside,we have contacted them and asked if we can enter a arrangement and legal and receivable have said they want the 4500 pounds paid in 3 or 4 instalments,we cannot afford this and have offered £60 a month,they have declined this.

We have a mortgage for £107000 and a secured loan for £20000 and a charge order for £6000 and the value of the house is £125000 so there is a shortfall.

What i am wondering is can they still sell the house and make us bankrupt even though there is no equity.

and also the house is in a joint mortgage so how would that affect things.

Also the account doesnt show on our credit file,the last time it was on file it showed as satisfied.(Maybe debt was sold on to other creditor)

I have tied contacting red castle (gothia) the creditor but we are not getting anywhere.

Any Advice please

[bottomburp]

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[mrshnn]

we have received stat demand from legal and receivables but we have not responded in the 21 days ,does anyone have experience of them,they are handling the case on behalf of red castle recoveries(Gothia).

Can i still ask for cca or is it too late.

Any advice please

[bottomburp]

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[byteofthecherry]

Uhmm...

Statutory Demands can be served by post. Definitely. Honest.

 

From a debt collecting point of view it's good practice to serve them personally in case it is queried later, but if the issuer is confident they can prove the debtor still lives at that address they will be confident in saying that it will have reached the debtors attention.... and if the debtor phones them regarding it then there is no doubt that it has been served. A letter saying it hadn't been served properly would be every bit as good as an acknowledgement of service!

 

Personal service is required for Bankruptcy Petitions, unless the court orders that substituted service (ie putting it through the letter box) can be effected.

 

Ignoring a Stat Demand is very risky if you don't want to be made bankrupt, becuase by the time you receive the petition personally served (or otherwise) it is too late to do anything about it other than pay up in full and fast.

 

It's because Stat Demands are so risky that they are a powerful tool. On the other hand, if they don't know of any assets held by you... petitioning for bankruptcy is also an expensive business and they are probably bluffing. In real terms, this means that if you don't own your house they are bluffing, and if they know you do own your house they aint bluffing.

 

How far you want to risk this needs to be governed by how much you have to lose.

 

There is some information about them from the point of view of the other side here

Statutory Demand Issues - Free Statutory information

 

What happens if your assets are far in excess of the money owed but you can't get your hands on the cash...I co/own my house with my Mrs, she says I have to sort it..end of(I agree) but I owe £4,000.00 and am truly skint..just turned 60, not well and no current job prospects, am awaiting pension credit payments...

[byteofthecherry]

Sherlock - the pleasure is mine.

It is pleasing to know that someone actually knows what they are talking about with SD's like yourself as I have seen some very bad advice with regards to them.

Norfolkboy got an SD through the post - therefore not served correctly.

Incidentally - would making token payments mean an admission of the debt?

 

My one from connoughts/1st credit came via interlink courier today, I was out..we live rural(depths of Somerset) and the carriers all know who is who, so most stuff is left for unsigned(it works in our community) where do I stand...???

[42man]

I think you should start your own thread, as it will get lost on the back of this old thread from 2008....You can bet since Connaught / 1st Credit were warned by the OFT earlier this year - The Office of Fair Trading: OFT imposes requirements on 1st Credit over debt collection practices Then they will be serious about making you bankrupt....you MUST get this set aside....and do have a read here - DCA Legal Successes - The Consumer Forums