Bankruptcy Order !!! *** WON, TWICE ***

[payingonlyencouragesthem]

No I haven't written to my MP.....I think I could send him an email today !!

 

Make sure you tell him/her that it looks like underhand tactics have been used to serve the SD and petition without you noticing because the debt is unenforceable.

[42man]

I've just written to my MP....

[payingonlyencouragesthem]

I've just written to my MP....

 

Good move - let us know what the response is.

[tomterm8]

This is a start:

 

Affidavit in support.

Circumstances surrounding the issue of the bankruptcy order.

1. On DATE, I received a bankruptcy order dated DATE, from COUNTY COURT.

2. I did not receive a statutory demand or the bankruptcy petition until DATE, after requesting a copy from the court.

3. I understand that my wife, XXXX, received a copy of the statutory demand from a process server. She was unaware of the importance of this paperwork, and did not give me it.

4. I applied for a set aside immediately after I was aware of the grounds that the order was made.

Legal grounds for the application to set aside.

5. It is my belief that, at the time the court granted a bankruptcy petition, there were grounds existing that (a) meant that the debt was not immediately payable to the petitioner and (b) that the debt was rendered unenforceable by statute.

6. Consequently, I believe that the court should exercise its powers under s282(1)(a) of the Insolvency Act 1986.

Perfection of the assignment.

7. It is noted that the claimants, in affidavits in support of the bankruptcy petition, state that a notice of assignment according in all respects with s136 of the Law of Property Act 1925 “was sent to the claimant”.

8. I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

9 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

10. The requirements for service via the post are

196.

Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1 by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. [emphasis mine]

11. It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

12. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

13. To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

14 Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the bankruptcy petition, and therefore any assignment was not perfected in law at the time the bankruptcy petition was granted.

Unlawful charges

15. It is my belief that the account upon which the respondent based their bankruptcy petition was, during the life time of the account, subject to substantial charges and fees that amounted to penalty fees and were unlawful.

16 . If an assignment is effective, the assignee stands in the assignors place as regards the benefit of the contract. Its position can not be better than the original assignors, and is subject to prior equities. The assignees claim can not exceed the amount recoverable by the original assignor, had there been no assignment. Linden garden trust v. Lenesta Sludge Disposals [1994] 1 AC 85 (HL).

17. Throughout the course of the Agreement, the original creditor has added numerous default charges to the Account for the Claimant’s failure to make the minimum payment on the due date and or for exceeding the credit limit and or if a payment is returned. (Full particulars are set out in schedule 2).

 

18.The default charges were applied in accordance with the standard terms of The Agreement which were:

a). A penalty payable on breach of contract and thus unenforceable: and

b) An unfair term under the Unfair Terms in Consumer Contracts Regulations 1999 (“The Regulations”) and therefore not binding on the Claimant.

 

19. The Charges were payable on breach of contract by the Claimant.

 

20.The amount of the Charges exceeded any genuine pre-estimate of the damage which would have been suffered by the Bank in relation to the Claimant’s transgressions.

 

21. In the premises the Charges were punitive and a penalty and thus unenforceable at common law.

 

22. At all material times the terms of the Agreement providing for the Charges were unfair within regulation 5 of the Regulations in that contrary to the requirement of good faith they caused a significant imbalance in the parties' rights and obligations to the detriment of the Claimant.

 

23. By reason of the said matters the terms were not binding under regulation 8 of the Regulations.

 

24. Consequently, any default notice, notice of assignment, or other relevant document under the consumer credit act 1974, which are required to describe the amount owing under the agreement, would be inaccurate and therefore be void by law.

Default Notice

25.. It is denied that any Default Notice was received by myself, and therefore the respondent is put to proof that the requirements of section 88(1) of the Consumer Credit Act 1974, as to form and content, were complied with. If these requirements were not complied with, the court would not have been entitled to grant any enforcement order and therefore such an enforcement order should be set aside.

Enforceability of credit agreement

26. I have serious doubts as to whether any enforceable debt has ever existed between me and the respondent.

27. As of DATE, I sent a credit agreement request with the statutory payment of £1 to the respondent by registered post. They had 12 days to respond until the credit agreement became unenforceable by law, and a further month before committing a criminal offence. However, as of DATE they have not supplied the required information.

28. I have seen other peoples credit agreements from the same period, and they were unenforceable as a result of being improperly executed and not containing the prescribed terms.

29. I believe that, at the time the court granted the bankruptcy petition, it did so on the basis of the assertion in a sworn statement by the respondent that a liquidated sum was payable at the time that the order was made. I do not believe that they knowingly misled the court, but at no time was the credit agreement provided in evidence, and I have not been supplied with a copy of the credit agreement despite my legal rights.

30. If the agreement is, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy petition was issued.

31. I therefore request that the court order the respondent to supply an original copy of this document, and of any proof that a notice of assignment was sent in the prescribed manner and not returned, and of any proof that a default notice was served on me.

[tomterm8]

To be honest, I am quite worried with this... given what i've seen, the stat demand was served correctly, and there really isn't much chance of getting it set aside (and, therefore, getting the bankruptcy overturned), but... at least it gives you something to go on.

[Goldlady]

Tom I think there is enough to raise sufficient doubt in a judge's mind. After all making someone bankrupt is extremely serious and if it is based on even partially unsound claims then I fail to see why it should be allowed to stand.

[Josie8]

Impressive affadavit BUT for some reason you appear to have completely ignored the House of Lords precedent case Wilson which if not cited in affadavit cannot then be considered. Wikson ruling makes Law of Property Act irrelevant as a creditor cannot sidestep the CCA if no enforceable agreement.

 

I can't understand why this case has been omitted as it is binding on ALL LOWER COURTS.

[payingonlyencouragesthem]

I would change point 3 see my PM

[42man]

Can we incorporate the Wilson higher ruling in here somewhere ?

[42man]

Is not providing a CCA after the 30+12+2 days actually a CRIMINAL offence does anybody know ??

[payingonlyencouragesthem]

Impressive affadavit BUT for some reason you appear to have completely ignored the House of Lords precedent case Wilson which if not cited in affadavit cannot then be considered. Wikson ruling makes Law of Property Act irrelevant as a creditor cannot sidestep the CCA if no enforceable agreement.

 

I can't understand why this case has been omitted as it is binding on ALL LOWER COURTS.

 

Have you got a link to the Wilson ruling Josie?

[Curlyben]

I think this is the one that is referred to: House of Lords - Wilson and others v. Secretary of State for Trade and Industry (Appellant)

[rory32]

Is not providing a CCA after the 30+12+2 days actually a CRIMINAL offence does anybody know ??

It's a summary criminal offence (although it is very rare for any prosecution to take place). The court you will be in is a civil court, not a criminal court, so the judge couldn't take any action on the offence.

[42man]

Thanks Rory...

[rory32]

I'm working may way through a backlog of PM's at the moment and am going to go through your Affidivit. Has Tom made any comments yet that I should be aware of?

[42man]

Needless to say TT has done a simply fantastic job with little time to work with !!! I am forever in his 'debt' !!! won't say too much here but I have pm'd you....

[nuke em]

Hi

I'n new here and i have followed this thread and what i have to say is this

 

This instance proves that many DCA's are a bunch of unregulated AHoles, what this case needs is AIR, ie it should be publicised everywhere, Press/TV/News Usergroups, EVEYWHERE. Maybe this Gov who likes to regulate the life out of everthing will sit up and take notice.

 

This just goes to show the underhand methods that they will use to scare the public and just look at the mess 42man is in now!!. A BR order for this should never have been granted in the first place.

 

A general point now and not specfic to this case

These DCA people need AIR in their businesses. They just cant be allowed to operate to a) make a huge profit out of people's misery by threats, intimidation and out & out lies and b)and be the 2nd tier to save the faces of lenders who want to keep their public image all rosey & sweet

 

The lenders sell their debts for pennies in the pound but never seem to settle for pennies in the pound withy the original debitor, why? Then the vulture DCA's buy them and try and make huge profit out of people that are already down using tactics that are for the most part illegal!

 

It is said that DCA read these forums, ( no doubt for their own ends) I just wish some judges would read these and other debt forums, to see what really happens prior to a case getting to court/& to see how DCA's operate in the real world

 

thats my 2 pence worth, i wish you luck and i will watch this thread with avid interest.

[linz2011]

Here Here and well said - I for one will support 42 110% and agree with your comments. Welcome to CAG

 

42 hope things are ok still thinking of you and your family and hoping you get the result you deserve

[reduk054]

What a great first post nuke em. We are all astounded by what 42man is having to endure, and through no fault of his own.

I hope that all of the recent progression with your case 42man is helping and appreciate that there is some behind the scenes work which is not being posted.

Hope that you keep us all informed as and when you are ready, willing and able!

Red

[nuke em]

Thanks , red

[42man]

A N N U L L E D

 

Appeared in court, 2 weeks ago, and I sat down with the opposing solicitor and the official receiver. The judge asked if there had been any discussions between the parties and I said I hadn't received any calls or correspondence.....then the judge immediately turned on the solicitor and said that he had been through my file and had NOT seen an affadavit of continued service from one of the very first hearings (before I even knew about the BR case) and he opened a book by Muir Hunter and consulted a case from Judge Boggis which said that the affadavit must be proved and he referred to point 6.15 of the Insolvency Laws....he even asked the OR to look in the files to see if he could see it, he told the solicitor to ring the office to find out if there was a document there. We all left the court room for 5 minutes, the OR couldn't find the document, the solicitor was on the phone....we came back into the court room, OR confirmed no document, and the solicitor said the original firm had a copy on file but couldn' access it as he was in court.....the judge said he would have to annul my BR if it wasn't there, I asked if the document should be there and he said yes and I asked the judge to annul, however what he said is that he would give the solicitors 7 days to come up with the document......he said that I didn't need to come to the 5 minute hearing unless I really wanted to and excused the OR too - I did say I wanted to be there......the judge did apologise to me saying that at this point although I had 'other grounds' (his words) I wouldn't be able to go through them today..

 

9 days later, appeared again with a different solicitor, judge told him that there still wasn't this document on file, turned to the solicitor and asked him if he had it....the sol said he picked up the case late last night and couldn't find it....said that one was being faxed to the court that morning, judge said go and ask the office at the court if it has been received, we both left the room, I heard the office saying that no document had been sent, solicitor on the phone saying he would do what he could, he came back to the door and said to me don't quote me on this but somebody has made a right cock up'....both went in again, and the solicitor said even though the document is supposed to exist, and is on the file they couldn't produce it there !!!!! the judge said he had no alternative but to annul my BR and take the charge off on my house from the OR. The judge said they may try again, I told him I was ready for them and I even said to the judge that I was looking forward to reading my evidence (the fact that none of the banks who they were claiming for have been able to trace any accounts or any credit agreements !!! which I have in writing !!!)....I was SO looking forward to submitting those to the judge !!!!

 

I have to say I am completely humbled and overwhelmed by the support I have had from the CAG, I hope it is ok to name names....Josie8, Tomterm, Sequenci, Gizmo, Rory, Curlyben, Saffronflowers, Lisa1987, Docman, Reduk054, Babybear39, Linz2011, Goldlady, PIGuy, Payingonlyencouragesthem, Sosumi....

 

In the end I didn't need to use the CCA, Wilson, LOP arguments...BUT and it is a huge BUT.....without you all I wouldn't have had the confidence to face up to these characters, the encouragement and positive attitude that I gained from you guys was simply amazing.

Please DON'T stop helping others, you all have a special traits and virtues and it speaks volumes about you....let's face it you all probably have better things to do than to roam these boards helping others....!!!

 

I will continue to aid on here as best as I can....and I am preparing a large file to send off to the OFT, TS, FOS etc etc.....the fight continues...!!!

 

Heartfelt thanks once again.....you all know who you are !!!

 

42man

[reduk054]

Hey 42man, I am so pleased for you that after many months of stress and I know behind the scenes work, that the correct outcome has prevailed. I hope that you can continue to rebuild you and your family's lives, and i really look forward to the next chapter when you take your oh so valid complaint further.

You have been an inspiration, with your determination, and I really hope that no-one else has to suffer what you have endured.

Please stay on the site, I know that you also have helped so many people yourself!

Well done, and reeeellllaaaaax!!

Red

[Curlyben]

Nice one !!!

 

[Saffronflowers]

WAHOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO - you know how incradibly thrilled I am for your whole family. I think that this is the best ever christmas presant that you will ever receive. I bet back on the 11th July it seemed like an impossible mountain to climb but you did it!!!!!

 

To everyone who has worked so tirelessly with 42M, you are amazing wonderful people.

 

This will be an amazing lesson to your girls that even when things seem impossible to change, with perserverance you can make a difference.

 

With hugs to all 42Man's family and to all the wonderful people on here.

 

SFx

[sosumi]

42Man, you've just made my day!!

That's wonderful news!!! :-) x