HFC/Weightmans - old Marbles card debt - Statutory Demand withdrawn now claimform

[PI Guy]

there are a lot of people that have stat demends served without going to court in order to scare them into paying. This is an abuse of process and ammounts to harrassment.

[Josie8]

I have just checked and it doesn't have to be stamped by the court ...its just the first step in trying to make you bankrupt and a copy of it with an affadavit has to be attached to the subsequent bankruptcy petition.

[Belaflat]

In that case, I would tend towards believing this to be a scare tactic and not a genuine demand.

 

That is purely my opinion though, I have ridden out 3 SDs up to now but any decision as to what you do next must be carefully weighed up.

[Josie8]

Data Protection Act disclosure request

 

 

Dear Sir/Madam

 

ACCOUNT NUMBER: ****************

 

Please supply me with All my personal data you hold including a complete list of transactions and charges (or alternatively a set of statements) relating to my account history with your organisation. I also require a complete breakdown of each Late Payment fee and Over Limit fee charged to this account, or any similar related charges. The complete breakdown of each charge must contain the following:

 

Hourly rate of each member of staff involved with each administration of the fees / charges. The time each member of staff spent on the administration of the fees/charges. Details of the work carried out and completed by each member of staff involved with each administration of the fees/charges. Total cost of the paper, envelopes, ink, and postage of each automated and manually written letter relevant to the issuing of the fees/charges, and any other costs incurred in each fee/charge including other employee’s involvement, their hourly rate, time spent on the involvement, and what their involvement consisted of.

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you. If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

Furthermore please provide me with a copy of my contracts with you, and a copy of my original terms and conditions. I make this request under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts.

 

I understand that under the Consumer Credit Act 1974 section 78, I am entitled to receive a copy of any credit agreement and a statement of account on request . I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act 1974.

 

I understand a copy of any credit agreement along with a statement of account should be supplied within 12 working days.

However given the time restraints now in place due to the issuing by yourselves of the formal statutory demand, the fact that the information should be readily available within your case file and that we are now working under CPR rules I request the information be furnished by return.

 

I further understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Please note that the Postal orders I have supplied are NOT to be applied to any alleged debt but used only for purposes supplied.

 

I look forward to hearing from you.

 

Yours faithfully,

 

 

Mr .***************

Enc £1.00 Postal Order ********

£10.00 Postal Order **********

[PI Guy]

A statutory demand requires that the debtor either:

• Pays the relevant amount

  
  

• Offers to secure it against property

  
  

• Offers to repay the debt in a way that is satisfactory to the creditor. For example, by instalments.

  
  

Some creditors use statutory demands as a way of persuading debtors to pay off the debt, usually by borrowing elsewhere.

 

However, statutory demands should be taken seriously. After 21 days the creditor can petition for a bankruptcy order. Therefore, it is usually worth contacting the creditor by telephone and asking them what their next step will be.

 

Ignoring a statutory demand may encourage the creditor to petition for bankruptcy. It is worth bearing this in mind, particularly if the debtor is contemplating petitioning for his own bankruptcy.

 

If the debtor wants to avoid bankruptcy he should consider:

• Making payment(s) to reduce the debt to less than £750; or

  
  

• Making an offer to pay by instalments; or

  
  

• Making an offer of a reduced amount in settlement of the debt; or

  
  

• Applying to have the statutory demand set aside

  
  

Setting aside a statutory demand.

21 days after the serving of the statutory demand, the creditor can petition for the debtor’s bankruptcy unless it has been ‘set aside’.

An application to set aside the statutory demand can be made if:

• There is a substantial dispute about the money owed;

  
  

• There is a counterclaim of more than the money owed;

  
  

• The creditor holds security that equals or exceeds the debt in value;

  
  

• On ‘Other Grounds’. Though not defined, these can include:

  
  

  • The demand was issued in error, e.g. for a secured debt or for an amount of less than £750;

    
    

  • Execution has been stayed on a judgement;

    
    

  • The debtor is complying with an instalment order (so the debt is not strictly due); and

    
    

  • The creditor failed to comply with the rules and prejudiced the debtor in the process;

    
    

An application to set aside must be made with 18 days of the statutory demand being served. Forms 6.4 (application) and 6.5 (affidavit) must be completed and taken to the court. However, the court can dismiss the application if there are no grounds.

 

If there are grounds, a hearing will be arranged at which the court will decide whether the demand will be set aside.

 

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.

[Josie8]

I think the next step will be to apply for a set aside in that the amount of the debt is disputed. Lets see if you get a response to the CCa request by next Weds/Thursday. If you don't it can be added to the set aside application that you have not had sight of a true executed copy etc .

[bennieee]

ok so I should send the first letter to the DCA and the second one to HFC?

 

If the demand is from the court, they would have a record of it, is it worth calling them to see?

 

and looking around the forums, i see alot that people add - phrases such as 'I do not acknowledge any debt to your company' and 'without predjudice' should i add these in to the letter?

[Josie8]

Don't add Without Prejudice as you want to produce this correspondence into court.!!

 

You can at top of letter put the following

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

but its not strictly necessary (may make you feel better though!) because your agreement is pre CCA 2006 so if they can't produce an agreement or one thats properly executed then according to the House of Lords ruling in Wilson v Secretary of State for Trade and industry they can't use ordinary contract law to enforce it.

 

I'm about to go intop a series of meetings now so I'll catch up later with you

 

Don't forget to send letters Special Delivery...........

 

Tryt not to worry you're amongst the Caggers family here:)

[toddle2u]

An SD does not have a court stamp on it. The courts are not involved with the service of a SD they only become involved if an application to have it set aside is made when they set a hearing date for the set aside to be heard

[bennieee]

thank you for all the help

 

to update... I posted both of these on Friday, Weightmans signed for it today and the HFC one is out for delivery today. Just have to wait now. I am speaking with the CCCS this morning as I booked an appt last week so will report back after.

[Josie8]

ok keep us up to date after seeing the CCCs

[PI Guy]

An SD does not have a court stamp on it. The courts are not involved with the service of a SD they only become involved if an application to have it set aside is made when they set a hearing date for the set aside to be heard

 

Correct i was wrong earlier in this thread.

[bennieee]

Nothing received from HFC as yet but I did recieve a letter from Weightmans this morning...

 

'We refer to your recent correspondance. As requested we enclose a copy of your orginal credit agreement.

 

As you have now been served with a Statutory demand, we request that you contact us to agree a suitable payment agreement and/or security for this debt, or we reserve the right to issue a bankruptcy petition against you.

 

If we do not hear from you within 21 days from the date that you were served with the statutory demand, we will have no alternative but to continue with legal proceedings immediately.

 

We look forward to hearing from you.'

 

There was a copy of an application form enclosed that is signed by both them and me but there are no t and c attached, is this a proper CCA?

 

I only now have 6 days until the 21 days is up so a little bit worried, I know that part of the debt is made up of charges but am not sure how much.

 

I spoke to the CCCS this week and they have agreed a DMP for both me and my partner. They did also agree during the discussion that it was worth sending a CCA request to the other creditors along with a SAR to try and reclaim other charges so this is something that I am going to get on with at the weekend. I would really appreciate advice on the CCA that they have sent to me and also advice on what to do next.

 

I have blanked out ref number from the solicitors, my name and address, my oh's name and signature and my signature

 

application form.pdf

[Dispirited]

Hi Bennieee, I'd lovel to help but am not experienced enough to advise on this but the heading reads... 'Your Priority Application...' so I'm unsure. Hopefully an expert will be along very soon....

[42man]

I think this is only an application form and not a copy of your CCA....somebody will come along soon and verify this....

[ODC]

This is an application form. There are no Terms and conditions with it so I dont think its acceptable or enfoceable. I suugeest you PM some of the site helpers who will give you a definative answer. Anyway you need to return the SD saying the amount is in dispute. You need the SAR from HFC to see what illegal charges they have imposed

[Belaflat]

I concur, heading states quite clearly "Application"

Not too clear but I do not see any APR details etc either, another point in your favour.

[Josie8]

This is an application form only. There are none of the prescribed terms. It is unenforceable by the court.

 

You must on monday file an application to set aside the statutory demand using a form N244 (£65.00 court fee) and say that this debt is not acknowledged and does not exist. I'll draft the application for you.

 

Don't worry the statutory notice will definitely be set aside.

 

and we'll ask for them to pay the costs of the set aside. We will also ask the court to declare that the agreement is unenforceable and then they can go swing for their money.................

[bennieee]

Thank you. I was so stressed this morning, and everyone has made me feel so much better. Thank you for all your help

[ODC]

You will always get help on here from the CAGGERS

[Josie8]

There is nothing to worry about now they've supplied the CCA. You have 18 days to apply for set aside from service on you on the 10th July, 2007 = 28th July

[bennieee]

So do I need to go to the court mentioned on the original demand to file the form?

[PI Guy]

yes they have the forms

[bennieee]

thank you

 

I am going to submit the form today to the court, would it be possible to have some idea of what to put as the reason to have it set aside, I have read loads of the forums on here which are brilliant but can't find anything similar to use as basis.

[Josie8]

Letter to Claimants Solicitors

 

Dear Sirs,

 

I am in receipt of your letter dated............. and the copy of the agreement provided by you in response to my S.78 CCA request. The agreement you have supplied does not conform to the Agreement Regulations s.60(1) on several counts, is therefore improperly executed as per s.61(1), and as a consequence is irredeemably un-enforceableunder s.127(3).

I have today made an application to dismiss the statutory demand and will be seeking to recover costs incurred in this matter.

I will also be asking the court for a declaration that the contract was void ab-initio and if successful will be reclaiming all monies paid to your clients.

Looking forward to your early response

Yours Faithfully,

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