Panicing and Worried Sick

[PriorityOne]

Thanks for the link Robdblynd....

 

I have copied the following extract from that link.... it refers to bankruptcy and not a CCJ.

 

If the debt falls under the Consumer Credit Act 1974, the court should also consider if any relief is available to the debtor under the Act. This would include a time order application.

 

David... as you received the SD on 18th March, you need to act now. Once a SD is served upon an individual, they have 21 days within which to respond before a peition for bankruptcy is filed. Please see below....

 

A Statutory Demand is the first step to bankruptcy against an individual and this is prepared and served without any court involvement. A statutory demand can be served as soon as the debt is due and a judgment is not necessary. If the debtor disputes the claim, he or she can apply for the statutory demand to be set aside. The bankruptcy court will halt the bankruptcy if there is any dispute about the sum outstanding. It can be relatively easy for a debtor to have a statutory demand set aside and the process can result in an order for costs being made against the creditor.

 

Please note that a statutory demand in 90% of instances is 'bluffing technique' used to scare a person into paying up. If a bankruptcy petition does not follow then this will become apparent.

 

Dave, on the assumption that they are not bluffing, I assume that a CCA request can halt this action if it is not complied with by the creditor/DCA.

 

Can anyone confirm this for certain ?

[gizmo111]

I suggest t hat the 2 with marital problems have a read here

Divorce: ondivorce for friendly community support

[PriorityOne]

Can a CCA request... if not complied with... stop a Statutory Demand for bankruptcy on a disputed account, as it can for a CCJ ?

[gizmo111]

Can a CCA request... if not complied with... stop a Statutory Demand for bankruptcy on a disputed account, as it can for a CCJ ?

 

Well they would still have to prove the debt - bankruptcy is a form of enforcement so I would guess the answer is yes

[Robdblynd]

Think I've read this right. If David's debt is a credit agreement debt then asking for the CCA compliance surely will give him breathing space to find out what his options are. My reading of debtlines advice is that he could apply for set aside of the SD if he disputes the claim and if it's a long term debt it's likely to have charges added to the total which he needs to reclaim, thus reducing the amount he owes anyway.

 

Think he should get one of the legal eagles lurking in CAGs bushes to have give an opinion.

 

Just my opinion FWIW.

[PriorityOne]

If it falls under CCA law, which it does... then if the creditor/DCA cannot comply with a CCA request.... the account will remain in dispute and therefore, cannot be enforced unless/until the doc. is produced in court.

 

The principle appears to be the same as with other debts, but it's the first time I've come across a SD query and a creditor wanting to make someone bankrupt. In my case, the creditor was threatening a property charge, but failed to comply with my CCA request.... so that plan failed !

 

[david1968]

Thanks to you guys for all your help, its gives me a real lift to have contact with people who understand my situation.

 

I am sending a CCA by special delivery today to Hamiltons and will let you know what I hear back from them.

 

I assume if I dont hear back I need to apply to a court to have the SD set aside, can anyone advise how this is done as there are no court details on the SD.

 

Thanks again,

David

[Robdblynd]

HTH, found it on google, god bless it.

 

The Insolvency Service Website

Part A

Appropriate Court for Setting Aside Demand

Rule 6.4(2) of the Insolvency Rules 1986 states that the appropriate court is the court to which you

would have to present your own bankruptcy petition in accordance with Rule 6.40(1) and 6.40(2). In

accordance with those rules on present information the appropriate court is [the High Court of Justice]

[ County Court]

(address)

Any application by you to set aside this demand should be made to that court.

If you consider that you have grounds to have this demand set aside or if you do not quickly receive a

satisfactory written reply from the individual named in part B whom you have contacted you should

apply within 18 days from the date of service of this demand on you to the appropriate court shown in

part A above to have the demand set aside.

Any application to set aside the demand (Form 6.4 in Schedule 4 to the Insolvency Rules 1986)

should be made within 18 days from the date of service upon you and be supported by an

affidavit (Form 6.5 in Schedule 4 to those Rules) stating the grounds on which the demand should

be set aside. The forms may be obtained from the appropriate court when you attend to make

the application.

Remember! – From the date of service on you of this document

(a) you have only 18 days to apply to the court to have the demand set aside, and

(b) you have only 21 days before the creditor may present a bankruptcy petition

Moving VERY quickly seems to be your first step.

Good luck,

Tricia.

[Gingerheid]

David to cut a long story short; the Statutory Demand should be served in person if at all possible; not by post. You haven't been properly served with the stat demand; unless of course you admit that you have been; in which case the fact it hasn't been properly served it totally academic. You are perfectly entitled to truthfully state "I have not been properly served with any statutory demand; I don't know what you are talking about".

 

Ways of admitting you have received it would include applying for it to be set aside. In addition, I can't see an earthly reason why a judge would set it aside unless you were very lucky. (Lloyds are very good at coughing up the agreements, apart from really old ones.)

 

In addition, sending a CCA letter does not need to acknowledge service of the Statutory Demand; you are entitled to contact creditors to deal with debts at any time. Indeed the expectation is that you should and would do this regardless of what they may or may not send you.

 

However the facts are that you are clearly insolvent and need to consider your position in that light. Hopefully you have a long healthly live ahead of you, so why leave the past hanging over your future for longer than necessary?

 

The main thing for you to consider it your wife's position. Bankruptcy invariably means equity in the house is split 50/50, so this is what you need advice about fast.

[dannyboy660]

Ways of admitting you have received it would include applying for it to be set aside. In addition, I can't see an earthly reason why a judge would set it aside unless you were very lucky.

 

 

If you have more than one creditor, an SD can be defended on the grounds the granting of an SD gives that creditor advantage over the others. That scenario would not be allowed in Civil Law, especially where property is concerned, which is why a CCJ 'hearing' has to take into account all your creditors, and not just those applying for judgment on unsecured credit. The only advantage a CCJ gives is the option of enforcement, it won't always increase and in many cases actually decreases the payments a debtor has to make. An SD is pretty pointless unless you are a business, or someone of fairly substantial means who might suddenly sell up and disappear.

 

If the Court Clerks are doing their jobs properly:) , the method of document service has to be taken into account before the matter goes for judgment, it's part of 'due process'.

 

SD's are, by and large, a scare tactic which is certainly the route Lowell/Hamptons have been taking recently. A last throw of the dice to their difficult customers before the OFT get involved next month perhaps?? Imagine how many will be spooked by this and get on the 'phone and get bullied into paying more than they can afford...........as opposed to those who do nothing, or would take the risk of complaining. Lowells really are the lowest of the low.

 

They will get sussed eventually.

 

Just wanted to chip in with that...OK people, sorry for interrupting carry on.......

[dannyboy660]

The link here demonstrates how this procedure is usually used against a Limited Company with sizeable assets :-

 

Technical Manual Chapter 45: Proceedings up to Order: Part 5: General Procedure Statutory demand

 

Looking around, there is loads of stuff on this subject and they all agree it is a serious step, but to a private individual its more of a 'warning shot', to use the words of the insolvency people....

 

Legal Issues Explained - Statutory Demand

 

 

I did notice as I suspected in the case of businesses, SD's could served by registered post, which will be of interest to many of you who received them by 2nd class, ordinary Royal Snail.

 

On the plus side, Lowell must be getting very desperate to resort to this, using last resort tactics so early on in their campaign.

 

The law also states the SD has to be issued by the creditor, or a party acting on behalf of the creditor. A purchaser bought the right to collect from the creditor, but are they now 'the creditor' in legal terms, when no contract exists?? Worth a thought.

[Gingerheid]

Re setting aside a Stat Demand on the grouds that it put an creditor at an unfair advantage / disadvantage... it's very unlikely that this would be seen to be possible, as bankruptcy is all about treating everyone fairly and equally.

[dannyboy660]

Re setting aside a Stat Demand on the grouds that it put an creditor at an unfair advantage / disadvantage... it's very unlikely that this would be seen to be possible, as bankruptcy is all about treating everyone fairly and equally.

 

That's precisely it.

 

A statutory demand is not bankruptcy, it merely makes the outstanding unsecured credit secured on property or stock, should the debtor decide to sell up, and that choice remains with the debtor. Last chance saloon for businesses.

 

In the case of a private individual the court can not give an advantage to one creditor above others, especially if another creditor is owed more than those applying for the SD.

 

 

"What is a statutory Demand?

 

A Statutory Demand is the first step to bankruptcy against an individual and this is prepared and served without any court involvement. A statutory demand can be served as soon as the debt is due and a judgment is not necessary. If the debtor disputes the claim, he or she can apply for the statutory demand to be set aside. The bankruptcy court will halt the bankruptcy if there is any dispute about the sum outstanding. It can be relatively easy for a debtor to have a statutory demand set aside and the process can result in an order for costs being made against the creditor.

Please note that a statutory demand in 90% of instances is 'bluffing technique' used to scare a person into paying up. If a bankruptcy petition does not follow then this will become apparent."

 

 

That's taken from the Insolvency advice service.

It's unusual for such notices to be issued against private individuals, and is another sick side effect of the Purchase sector, but unfortunately it's legal. It's causing serious panic among mostly vulnerable people, hence the advice being given that it's nothing to get distressed about.

[Gingerheid]

That's precisely it.

 

A statutory demand is not bankruptcy, it merely makes the outstanding unsecured credit secured on property or stock, should the debtor decide to sell up, and that choice remains with the debtor. Last chance saloon for businesses.

 

In the case of a private individual the court can not give an advantage to one creditor above others, especially if another creditor is owed more than those applying for the SD.

 

 

"What is a statutory Demand?

 

A Statutory Demand is the first step to bankruptcy against an individual and this is prepared and served without any court involvement. A statutory demand can be served as soon as the debt is due and a judgment is not necessary. If the debtor disputes the claim, he or she can apply for the statutory demand to be set aside. The bankruptcy court will halt the bankruptcy if there is any dispute about the sum outstanding. It can be relatively easy for a debtor to have a statutory demand set aside and the process can result in an order for costs being made against the creditor.[/qoute]

 

A stat demand isn't bankruptcy; certainly not. It's the first step though, and if it's served properly and not disputed it's proof for a bankruptcy court that the debt exists and isn't disputed; ie that they can make a bankruptcy order no questions asked.

 

I'd strongly dispute that it's an unusual step to take in bankruptcy proceedings. It's not essential and there is an alternative; you can get a CCJ, apply for a warrant of execution, let the bailiff play with the warrant for a while, wait till they return it, and then petition for bankruptcy. However a stat demand is a lot faster, and I'd say it's the most common way of initiating proceedings. In fact, most creditors who want to petition for bankruptcy will (entirely unnecessarily) issue one even if they do have judgement and a returned WofE, just because of the certainty and defniteness it brings to the proceedings.

 

 

Please note that a statutory demand in 90% of instances is 'bluffing technique' used to scare a person into paying up. If a bankruptcy petition does not follow then this will become apparent."

 

 

That's taken from the Insolvency advice service.

It's unusual for such notices to be issued against private individuals, and is another sick side effect of the Purchase sector, but unfortunately it's legal. It's causing serious panic among mostly vulnerable people, hence the advice being given that it's nothing to get distressed about.

90% of what DCAs say is a bluffing technique; probably more. The difference with a (properly served) stat demand is that they set a point of no return. If they weren't bluffing it's too late.

 

The good news is that these ones weren't properly served. This

 

a) indicates they are bluffing, as people starting off the expensive process of bankrupting someone usually do it without silly mistakes so that it is as cheap as possible.

 

b) is handy in that it means that, as long as you don't acknowledge the dodgy stat demand, it gives you a point of return if a bankruptcy petition turns up and you find out they weren't bluffing.

 

Sadly, as well as worry, the Lowell / Hampton Statdemandograms will bring a false hope to a lot of people. Making yourself bankrupt costs good money to the people who have it least, and there are many people struggling to save to make themselves bankrupt who are desperate for a creditor to do the deed for them.

[dannyboy660]

"I'd strongly dispute that it's an unusual step to take in bankruptcy proceedings. It's not essential and there is an alternative; you can get a CCJ, apply for a warrant of execution, let the bailiff play with the warrant for a while, wait till they return it, and then petition for bankruptcy. However a stat demand is a lot faster, and I'd say it's the most common way of initiating proceedings. In fact, most creditors who want to petition for bankruptcy will (entirely unnecessarily) issue one even if they do have judgement and a returned WofE, just because of the certainty and defniteness it brings to the proceedings."

 

It's not unusual against businesses. Had the guy who sent the bailiffs into RBS issued an SD instead, he would have got what he wanted without question. A visit from the bailiffs may have been embarrassing for them, and bad PR for a short time, but to get an SD showing in Companies House, Company credit check, Business reports, Company reports, Company Information for all UK businesses is pretty devastating for a business. Like getting the worst school report ever and something investors will consider.

 

The reverse is true for an individual. An SD is pointless unless you have substantial assets, which most debtors don't, but a visit fom the bailiffs enforcing a CCJ is something most people would do anything to avoid.

 

 

We're thinking along similar lines, but perhaps approaching it from slightly different perspectives. (if that makes sense)

 

 

"Sadly, as well as worry, the Lowell / Hampton Statdemandograms will bring a false hope to a lot of people. Making yourself bankrupt costs good money to the people who have it least, and there are many people struggling to save to make themselves bankrupt who are desperate for a creditor to do the deed for them."

 

......that is a very good point, something I failed to take into account.

[Gingerheid]

This all depends; debt collectors have several buttons they can push to create fear, and different ones work for different people. Part of a DCAs job is to keep trying different ones until they find one that works. Which one works has no ground in reason.

 

Some people for whom bankruptcy would be a better thing than sliced bread are terrified of it. Other people who have nothing to fear from bailiffs are terrified of them.

 

On the other hand people whose life could be made to fall apart by bankruptcy can be totally blase about it, and someone with a HP free Range Rover on the drive might think they have nothing to fear from bailiffs.

[david1968]

Once again thanks for all the advice.

 

Just to make it clear to everyone I thought I'd clarify where I'm upto with Hamiltons.

 

The issue date on the SD was 18/03/07. On 27/03/07 I sent a CCA letter by Special Delivery, I did not mention the SD it the letter.

 

Just to clarify to everyone I do not want to avoid paying my debts of I just want to buy some time as my wife is in agreement to sell the house and buy with her new partner. When this happens it will put me in a very strong positon to negotiate much lower settlements with the creditors as one off settlments. This is why the SD could not have come a worse time.

 

Am I to assume that what ever comes back from Hamiltons I should do nothing with the SD as it was sent normal post and therfore not properly issued and would not stand up and I could deny ever receiving it?

 

 

Thanks again,

David

[dannyboy660]

I'm sure some would disagree with me, but I think you could safely ignore Hamptons.

 

Their worthless SD is nothing to be concerned about. It's just an attempt by Lowell's to draw you into their trap so they can bleed you dry, before anyone else gets a chance.

[dannyboy660]

This all depends; debt collectors have several buttons they can push to create fear, and different ones work for different people. Part of a DCAs job is to keep trying different ones until they find one that works. Which one works has no ground in reason.

 

Some people for whom bankruptcy would be a better thing than sliced bread are terrified of it. Other people who have nothing to fear from bailiffs are terrified of them.

 

On the other hand people whose life could be made to fall apart by bankruptcy can be totally blase about it, and someone with a HP free Range Rover on the drive might think they have nothing to fear from bailiffs.

 

Hi Gingerheid,

 

All good points and very true.

 

"Making yourself bankrupt costs good money to the people who have it least, and there are many people struggling to save to make themselves bankrupt who are desperate for a creditor to do the deed for them."

 

It's been bugging me a bit since you said that....it's something I'd never seriously considered before.

 

Back into thinking mode.......

[Gingerheid]

Yes, you can safely say that you have not been served with a Statutory Demand. Service of a Statutory Demand doesn't take place by post, so this is entirely true.

[david1968]

What should I do now.

 

I sent the CCA request to both Lowells and Hamiltons by special delivery on 27/3/07

 

I had a reply from Lowells dated 30/3/07 saying it may take longer than the 12 days but would let me know.

 

To date I have heard nothing back from Lowells, I have however had another letter from Hamiltons threatning bankruptcy etc.

 

Any ideas what to do next.

 

 

Thanks

[kennyparkroad]

its just scare tactics, youve sent them the CCA and have the proof its been signed for.

 

let the clock tick, they would be foolish to take it to court while its in dispute because no court in the land would have it!

 

relax.

[david1968]

Been reading through lots of the threads on here and one thing does concern me.

 

When I sent my CCA to Lowells/Hamptons I asked them to send me the agreement within 7 days not 12 as I did not fully understand the CCA.

 

Could this present me with a problem?

 

Lowells have written back to me confirming receipt of my request and the fee, this is a quote from their letter.

 

"WE ARE IN RECIPT OF YOUR REQUEST FOR A COPY OF YOUR CREDIT AGREEMENT IN ACCORDANCE WITH SECTION 78(1) ON THE CONSUMER CREDIT ACT 1974

WE ARE ALSO IN RECIPT OF THE PRESCRIBED FEE FROM YOU

WE ARE REQUESTING A COPY OF THE AGREEMENT FROM THE ORIGINAL LENDER WITH WHOM YOU ORIGINALLY ENTERED INTO THE AGREEMENT.

WHILE WE ENDEAVOR TO REPLY TO YOU WITH THE REQUIRED INFORMATION WITHIN THE PRESCRIBED 12 DAY PERIOD UNDER THE CONSUMER CREDIT ACT, YOU WILL APPRECIATE THIS IS DEPENDANT UPON RECIPT OF THE INFORMATION FROM THE ORIGINAL CREDITOR

WE WILL ADVISE YOU FURTHER IF IT WILL TAKE LONGER THAN THE PRESCRIBED PERIOD"

 

The letter was dated 30th March 2007

 

I have also had another threatning letter from Hamiltons dated 16th April 07 threatning a Bankruptcy Petition Order, are they allowed to do this before they have come up with the agreement.

 

Also we have gone past the 30 days.

 

Am I OK despite the error in my CCA letter?

 

Should I sit tight or respond to Hamiltons?

 

Thanks Guys.

[Robdblynd]

I'd listen to Kenny, without producing the documents you ask for no court will act on it. They're just trying to scare you into paying up.

 

If they've gone past 12+2+1 calendar month from receipt of your request, report them to TS and anybody else you can think of, eg. OFT, FSA etc.

 

They know they haven't got anything or they'd have responded by now, they're just putting on the pressure to see if you crack.

 

There are some brilliant letters on the Debt Collector forum in other peopel's threads, I particularly recommend Diskmandave, he's had dealings with Lowells and soon sorted them out. Have a read, might give you some ideas.

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/59620-diskmandave-lowell-finacial-capone.html?highlight=Diskmandave

 

HTH, but hold your nerve, they're onlyout to rattle you.

[tomterm8]

I am no longer welcome on CAG