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

[tomterm8]

282.

Court’s power to annul bankruptcy order.

— (1) The court may annul a bankruptcy order if it at any time appears to the court—

(a)

that, on any grounds existing at the time the order was made, the order ought not to have been made, or

 

The above is my issue, surely if it is proven that the debt is unenforceable or whatever, then on ANY grounds the bankruptcy can be annulled.

 

If the debt was unenforceable, that means the debt wasn't a liquidated debt due at the time the agreement made, and it SHOULD mean that the bankruptcy petition should not have been made.

[tomterm8]

The thing is, looking at the documents, i am now at least 70% sure that the bankruptcy petition was granted improperly. The reason for this is a pure technicality that everyone gets wrong.

 

A notice of assignment is served at the time that the document is recieved in the hands of a debtor. it can be served personally, or by remote service. i assume personal service was not the method of such service.

 

if service is done remotly, the only means is as specified by

 

s196 of the law of property act, 1925.

 

 

Regulations respecting notices.

— (1) Any notice required or authorised to be served or given by this Act shall be in writing.

 

(2) Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

 

(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

 

(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.

 

(5) The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

 

(6) This section does not apply to notices served in proceedings in the court.

 

 

it is not sufficient to send the letter by first class post; it must be sent by registered mail, or left in person at the address.

 

Therefore, any letter served other than by registered mail is not served. If a notice of assignment is not served, then the debt is not owed to the assignee, and the bankruptcy petition is void.

 

so was such a letter sent by registered mail, or left on the doorstep?

 

 

it's all in the technicalities.

[Docman]

Hi 42man

 

Came across your thread last night and absolutely amazed at what has happened to you. I don't know where to start but I hope I can help. Its over 20 years ago but I use to work for the OR for a good few years, so my knowledge is a bit rustry and I'm currenlty out of the UK without access to many materials.

 

First, case law. Annulment etc doesn't happen very often under the 'new Act' ie the Insolvency Act of 1986. Most of the case law stems from the 'old Act' - the Bankruptcy Act of 1914. If you can get hold of a copy, the 'bible' of cases used by the bankruptcy court and the OR is called Williams and Muir Hunter on Bankruptcy. You may be able to find a copy from a law library (eg a University) or your friendly solicitor might lend you one.

 

Seqi is correct in that the Court has the power under S 282.....

 

"282.

Court’s power to annul bankruptcy order.

— (1) The court may annul a bankruptcy order if it at any time appears to the court—

(a)

that, on any grounds existing at the time the order was made, the order ought not to have been made, or...

 

You will need to show (a) that you were not told about the bankruptcy hearing and (b) that if you had been aware, you could have challenged the existence or amount of the debt.

 

For what I have read in this thread, it appears the process must have started with a statutory demand[sD]. Basiscally this is a demand that you pay up - no court judgment invovled which is why more creditors seem to be using it. If you don't pay up, the creditor can present a bankruptcy petiton. Up to now, the SD hasn't cost the creditor anything but if he goes to present a petition, then he has to stump up hard cash (around £600). When the bankruptcy petition is heard, the court has to be assued by the creditor that you have been PERSONALLY served with a copy of the bankruptcy petition. If you have 'gone away' or are otherwise avoiding getting served, the creditor can go to the Court and ask for what is called 'substituted' service. usually this means the court will allow the creditor to send a copy to your last known address. It has always been rare for the court to order this and I expect more so these days with all the electronic databases available to creditors to trace a debtor. You need to find out how the creditor claims you were served. I suggest you visit the bankruptcy court (Wrexham ?) which should be the nearest county court that deals bankruptcy to where you reside. Ask the Court staff to let you have a look at the Court file to find out what the creditor has told the court about how you have been served. See if you can copy the bankruptcy petition (if you haven;t got a copy already) and more importantly, the affidavit from the creditor's process server which states how you were served. If the process server says he gave the bankruptcy petition to a lady, you have an open and shut case. You clearly were not served. Unfortunately, the District Judge probably didn't check the affidavit. he would assume you had been properly served and when you didn't turn up, made the bankrupcty order. Your annulment application will therefore have to clearly show you were NOT served, challenging the process server. To a large extent, the 'service' is down to the technicalities of the case, but if you can show the court was misled by the creditor, I'm sure the judge will annul PDQ and have a few words to say to the creditor and his server. If you can find out about the service, send me a PM.

 

So much for the technicalities. In your application, you will also have to show that if you HAD known, you would have been able to challenge the creditor. This is basically the No CCA, No enforcment, argument. There is more information about that argument on other threads, so I won't repeat now. I also suspect this has become a long post, so I'll wrap up now but I'll look a few things up when I'm back home at the weekend.

 

Chin up.

[tomterm8]

Hi 42man

 

 

So much for the technicalities. In your application, you will also have to show that if you HAD known, you would have been able to challenge the creditor. This is basically the No CCA, No enforcment, argument. There is more information about that argument on other threads, so I won't repeat now. I also suspect this has become a long post, so I'll wrap up now but I'll look a few things up when I'm back home at the weekend.

 

Chin up.

 

As far as I can tell, the stat demand was properly served, by subsituted service at the order of the court.

[42man]

Can anybody assist me in writing an Affadavit please ?....please PM me...it seems my cagger is in Spain and i'm going to need some help !!! thanks in advance...

[PI Guy]

what do you need to say? what kind of affidavit?

[42man]

Hi PI.....I need to supply an affadavit in getting my bankruptcy annulled....i.e. no CCA's, nothing was served personally on me, etc

[PI Guy]

Affidavit of: [Forename Surname]

Sworn: [Date of swear]

Affidavit marked “A”

Sworn on behalf of the Debtor

IN THE [name of court] COUNTY COURT CASE NO.

IN BANKRUPTCY

RE: [FORENAME SURNAME)

AFFIDAVIT OF [FORENAME SURNAME

 

 

IN THE MATTER of a Bankruptcy Petition filed on the {DATE OF PETITION

 

I [FORENAME SURNAME] of [ADDRESS]

 

MAKE OATH AND SAY AS FOLLOWS:

• THAT I did on Thursday the 26th day of April 2007, before 17:00 hours serve the above-named debtor with a copy of the above-mentioned Petition, duly sealed with the seal of the Court by delivering the same personally to the said Mr [NAME SURNAME] at [ADDRESS].

• A sealed copy of the said Petition is now produced and shown to me marked “A”.

• I believe that the facts stated in this Statement are true.

Sworn at )

)

)

)

)

In the County of Surrey )

)

this day of 2007)

Before me,

A solicitor empowered to administer Oaths

Or

An Officer Authorised by the Judge to Take Affidavits Pursuant to Section 58 of the County Courts Act 1984.

[PI Guy]

Jut fill in the paragraphs with what you need to say

[42man]

Thanks PI....just need to quote some case law too....I really appreciate your help....

[PI Guy]

have you received any part of the petition at all?

[42man]

The only paperwork I saw was AFTER the bankruptcy had been granted (I drove to the court and saw all the paperwork !!! - none of which I had ever seen before)....the judge said the process had been served correctly, but as no CCA's have been produced by them (they are outside the 30+12+2) I am getting it annulled due to the fact that I don't owe them anything !!.....I have also written to the banks concerned asking for the CCA's and they too have not produced anything !!

[PI Guy]

in all that paperwork that you saw at the court, what was the method of service of the stat demand and of the bankruptcy petition?

 

was there an affidavit or a statement of service from the process server?

[42man]

substituted service....the demand was given to a lady who identified herself as my wife....

[PI Guy]

what about the bankruptcy petition?

[42man]

I think it was in the bundle of papers I picked up from the court....

[PI Guy]

but how was it served? It needed to be served personally and if this wasn't possible then a substituted service would have been tried after being granted permission from the judge.

[42man]

I'm afraid it was granted PI....the process was carried out correctly...

[PI Guy]

ok but you are fighting it on the grounds that you didn't owe the debt in the 1st place?

[42man]

On the grounds that I don't owe (no CCA's) and the fact that my wife says she cannot remember being given anything....

[payingonlyencouragesthem]

I'm afraid it was granted PI....the process was carried out correctly...

 

On what grounds was permission for substituted service requested and given? This might be important if the process server claimed you were avoiding service when you weren't. Did you ever refuse to sign for something on the doorstep, not knowing what it was?

[reduk054]

Just want to add my support to your case 42man, Ithink that it is such a frightening example of DCAs bullying people, to the worst extreme!

I hope that once this battle to have your BR annulled, that you will be complaining (I know you mentioned suing) to TS/OFT about 1st Credit. I am so sorry to hear what has been happening to you, and will continue to read with interest.

Best wishes

Red

[Docman]

42,

 

As PIguy says, you need to be clear about how the bankruptcy PETITION was served. There are important rules about service and if they aren't complied with, the bankruptcy should be annulled.

 

If it was by substituted service, the process server will have had to made an affidavit to the judge. You will have to rebut the statement made in that affidavit in your affidavit.

 

When you went to court, did you see the Dsitrict judge and was it him who told you it had been correctly served? Or was it one of the court staff?

[payingonlyencouragesthem]

Have you written to your MP about this? You will probably get similar advice to what you have already had here but sometimes miracles do happen after well worded complaints to MP's. It could help land the DCA in a lot of trouble too. Even if you get the bankruptcy annulled I would write as he/she would quite likely lean heavily on Trading Standards and the FOS.

[42man]

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