Statutary Demand Received

[newuser43]

Hello All,

I am a new user and desperately need some help. There is a whole back story to my situation which I won't go into on this thread. However just need some guidance as to which would be the correct thread to post my situation on.

Briefly, I have a debt of just under £10,000 (which was originally £6700 but has increased due to claimants representatives costs etc). I am self employed but on a low income. The debt is a joint debt with my partner, who has just started self employment but again on a low income. Based on advice I found online I submitted an income and expenditure form with an offer of payment of £1 p.m. until our situation improved. This was refused and we were issued with a claim form. We returned the admission form with our income and expenditure and again proposal for £1 per month. We then received a judgement in default. We have submitted the Application to set aside as the reason stated for the default was that we didn't respond. We did and we have said our evidence is the royal mail tracked and signed for reference that shows that the item was signed for on the final day of the 14 days from service by the claimants reps. We are now waiting for a date and time for the hearing. However yesterday evening we were handed a statutory demand for this and the particulars of debt stated the judgement which was issued, which we are waiting for a hearing for.

Also the date on the stat. dem. shows the 14th April (good friday) but we were not given it until yesterday evening, 18th April.

Any help most gratefully received and should I be posting this on a particular thread? Many apologies in advance if I'm in the wrong place.

[Diana M]

Re: Statutary Demand Received

Can you clarify that your response to the claim form was an Acknowledgment of Service with an Admission of the amount claimed and an offer of £1 per month payments?

I would expect that to have resulted in a CCJ if the court considered your offer as an admission of the debt not an intention to defend this claim.

However you say you received a Default Judgment on the basis that you did not respond to the claim by the deadline which would have been 19 days from the claim Issue Date.

You have made an Application for a set aside and are waiting for a hearing date.

At that hearing you will need to persuade the court that if they do set aside the CCJ you would have good prospects of defending the claim. If you've already admitted the debt then that could be tricky.

However would you have any legal arguments which would have had the potential to defeat this claim if you had filed a Defence after taking legal advice?

You may not have a second chance but it's worth a shot.

So who is the Claimant and what is the claim for?

The SD is a separate issue, but if there is an Application in the pipeline to challenge the CCJ then the SD may be premature. Does the Claimant know you've applied to set aside the CCJ?

Di

[Diana M]

Re: Statutary Demand Received

I see you also said that this was a joint debt with your partner so were both of you named on the Claim form as 1st Defendant and 2nd Defendant? You refer to "we" throughout your first post.

Would this debt have been a loan regulated by the CCA?

Is the CCJ in both names?

Is the SD in your name only?

Di

[newuser43]

Re: Statutary Demand Received

Hello Diana M, thank-you so much for your help.

We sent back the Admission form only, direct to the claimants rep. as instructed in the response pack, we included all of our I&E which showed us having £50 p.m. more outgoings than income and we included an offer of £1 per month.

Upon receiving the judgement in default notice, we called the county court business centre for clarification as to why the reason cited on the judgement in default was that we did not respond. We ended up speaking to a manager who said that they (claimants reps) would only have to press a button to issue the judgement in default and it simply instructed the court to issue the judgement in default.

The reason we have asked for the judgement to be set aside is that we did respond with an offer of payment and it is not correct that the judgement was issued in default because of non response, because we did respond.

We assumed that our financial circumstances would have been considered by a court official, but it seems that because we returned the admission form directly back to the claimants rep, as instructed by the response pack, the court has no input as to consideration of our offer. Hence why we thought that the application to set aside the judgement was the correct route.

Yes the debt is a joint debt, myself and my partner received separate claim forms, separate judgements in defaults and separate SD.

The debt is for school fees for our daughter. If I may briefly explain. When our daughter moved from primary to secondary education in 2009, due to her having such a terrible time at primary school (bullied), our first two places for secondary were refused and we were offered only one school, miles out of our area and a bad reputation. We explored the option of a private school very nearby. It was just rescued from bankruptcy by United Church Schools Trust and the new head was tasked with getting new pupils. We were not having a great time financially but we called them to find out what the fees would be. Long story short, the new head offered us full bursary and discounted fees etc. on the spot without asking for any financial evidence. She left in 2013 to study A levels at another school. At this time we were in arrears for her fees. We came to an arrangement to pay UCST what we could per month. Unfortunately by 2016 we were struggling severely and stopped paying them. Out of the total of £29,000 (approx) of total fees owed we had paid £22,600. The difference is what UCST are now asking for. However with costs etc. that has now become £9888.01

The company they are using is Redwood Collections. From my very first call to them, they were most unhelpful. We did include a complaint in our first letter to them, which they still have not addressed despite the complaint being included in every letter to them since then and asking for a reason for the lack of response to it. In our last letter to them we cited the CSA codes of practice and pointed out that under the common principles they should have ceased recovery activity whilst investigating a complaint which they did not do and have still not responded to, despite being asked three times now. However, we realize this is probably a separate issue.

I am sorry if I have included too much information but am trying to answer your questions thoroughly.

Thank-you again in advance of your help.

[nemesis45]

Re: Statutary Demand Received

Redwood Collections run by the North Family well known for heavy handed collection of delinquent school fee accounts.

Is there sufficient collateral available to meet the amount claimed?

nem

[Diana M]

Re: Statutary Demand Received

Thank you for providing some more background.

Without knowing enough I'm tempted to say that in a perverse way you may be protected from bankruptcy if you have a CCJ which is an instalment order since unless you breach that Order there shouldn't be enforcement action. However a £1 per month payment won't impress.

On another level you have paid £23k off a £29k debt so that shows you're not a 'debt-avoider'.

One important question has to be can the Claimant (is that UCST or has the debt been sold on?) prove the debt? Did you sign any contract with the school and did it allow for interest and extra costs to be added including commission to a third party collection agent?

So far a court hasn't ruled you owe the money claimed, only that you missed the deadline for filing.

Redwood Collections are regulated by the FCA so any complaint against them can be escalated to the Financial Services Ombudsman. In some circumstances that can throw a spanner in the works if the FOS are investigating (the SD side of things).

If the SD was dated 14th April you have 18 days to respond before they can petition for BR not four days!

Di

[newuser43]

Re: Statutary Demand Received

Hi nemesis45, thanks for the added info.

No we have no assets.

Had to sell our home quickly in 2011 in the face of a repossession hearing, left lots of debt and nothing but the clothes on our back.

Then rented two rooms in partners sisters home for last 6 years. Had a falling out recently and she gave us notice to leave. In last two weeks moved into a rented 2 bed flat with help from housing benefit.

We have struggled over the last 6 years to recover and now we are just starting to get back on our feet, business is not great but it is slowly improving. Now this has happened and we are worried sick that if they do pursue a petition for bankruptcy, the last 6 years of struggle will have all been for nothing.

We are both sick with worry.

Interestingly on our first phone call to Redwood, I made it clear we do not have any assets, however he asked about the house we were living in and I made it clear to him that we did not own the property, it belongs to my partners sister.

My partner and her sister have the same surname, we think that when they completed their initial checks they have mistakenly assumed that my partner owned this house and are pursuing this on the basis that there is an asset.

Believe me, if we had anything of any value, I would sell it in a flash to pay this off.

Is it possible for them to continue with a petition for bankruptcy even though we have no assets?

Many thanks again for your continued help.

newuser43

[Diana M]

Re: Statutary Demand Received

Did you see my previous post?

Di

[newuser43]

Re: Statutary Demand Received

Hi Diana M,

Sorry for the delay, I have been frantically searching all of the documentation we had received from the school since the daughter started there. To my surprise I have the original acceptance letter from the school confirming daughter was given a place at the school, along with the letter confirming the scholarship award but there is no contract or copy of any contract. Just the first invoices.

If we had received one to sign it would be there with those letters. Also my other half and I have just racked our brains to try and remember a point at which we actually did sign any contract, and we are almost positive that we didn't.

However, isn't just accepting the place originally a kind of agreement to their terms and conditions etc.?

UCST are still the owner of the debt as they are named as the claimant on the original claim forms we were sent.

The judgement in default we received was a demand to pay the whole amount, not the amount in installments.

Do you mean that if I have a CCJ in place with agreed installments, that they cannot pursue a petition for bankruptcy?

On a note about the monthly amount of £1, yesterday we sent another letter to Redwood increasing our offer to £30 per month as an act of good faith to tackle the debt more effectively. This was posted before we received the SD.

Many thanks for your continued help.

newuser43

[Diana M]

Re: Statutary Demand Received

Okay, these are the things to consider:

1. Is the SD valid? If it didn't give you 18 days to 'pay up' then it probably isn't. This means you can make an Application to have the SD set aside (more later).

2. If you have a CCJ which is for the whole amount (a 'forthwith' Order) then the Claimant is entitled to go after you for BR once you breach that Order. Maybe they issued the SD on receipt of the Default Judgment (see my next point before you panic).

3. If you have a CCJ for the whole amount you can make an Application to Vary it to an instalment Order. If you keep to the instalments ordered by the court (i.e. don't breach that Order) then the Claimant can't go after you for BR.

4. If you have an Application to set aside the CCJ in the pipeline (and you say you do) then the SD has to get in the queue (so to speak).

So can you clarify the exact date on the SD and the date it demands your payment because that would probably be your starting point.

Dig out any paperwork you can find which proves you entered into a contract with the school and on what terms.

Redwood say on their website that they work on commission. You need to know how the Claimant got to the sum claimed since you say it's greater than the actual amount of school fees owed. Can you type up the Particulars of Claim removing anything which would identify you or your wife.

Did the Claimant instruct solicitors to issue the claim?

Sorry for all the questions but knowing the full facts makes it easier to make accurate suggestions on how to manage this situation.

Di

[newuser43]

Re: Statutary Demand Received

Hi Diana M,

Firstly, thank-you so much for your continued help. I noticed the time of your last response and I'm sure that you are replying to this after a long day at work and during this time I'm sure you would normally be relaxing. My partner and I are so grateful for your help,this forum, and particularly/especially your help is a godsend to us at this time.

I will digest everything you have suggested and I will spend the rest of tonight digging out every single piece of documentation we have ever received from the school in order to clarify if we have anything that resembles a contract or an agreement to terms and conditions. I am an absolute stickler for keeping all paperwork, so if we have ever received one, or had any reference to such, it will be here.

In the meantime, a point by point answer to your questions that I can answer now:

1. The SD clearly states at the top of the first page:
"This is an important document. You should refer to the notes entitled "How to comply with a statutory demand or have it set aside"".
"If you wish to have this demand set aside you must make application to do so within 18 days from its service to you"
"If you do not apply to set aside within 18 days or otherwise deal with this demand as set out in the notes within 21 days after its service on you, you could be made bankrupt and your property and goods taken away from you."

The exact date as shown on the first page is 14th April 2017. However, it was not "served" (hand delivered to our front door) to us by the Debt collection Agent until the 18th April at 7.45pm. He did not ask us to sign any receipt or such. He rang the front doorbell and said "I just need to hand you these papers", handed them to us and then went.

2. The Judgement for Claimant (In Default) clearly states (forthwith) alongside the full amount to be paid (£9888.01). So I am assuming that this is indeed a forthwith order. The date on this judgement in default is 31st March 2017, and the date shown on the SD is 14th April 2017. So allowing for processing and postage timings I can only assume you are absolutely correct that they issued the SD upon receipt of the Default judgement. (Trying not to panic!)

3 and 4. We are still awaiting the date and time details from our local court for the hearing to set aside the judgement. However from everything you have clarified, and from what I have understood, we probably cannot rely on the fact that we are disputing the fact that the judgement in default is wrong just because we say we actually have responded. This would probably not give the court a reason for setting the judgement aside. As it does not clearly show a reason that the judgement should not have been issued in the first place. Moreover to have a chance of setting the judgement aside we would have to show that we would have a good chance at defending the original judgement in the first place. The fact that we did respond and the claimants reps issued the default saying that we didn't respond is just a matter of the claimants reps speeding up the process so that they could get on with issuing the SD, i assume.

So the fact that we are applying for the CCJ to be set aside on the grounds that we did respond on time, and they say we didn't respond at all, is not really grounds for the court to set the judgement aside?

The particulars of claim, as per the original claim form are as follows:

1. The claimant claims the sum of £7671.76 being the monies owed by the Defendant to the Claimant for the price of fees payable under the claimants terms to the Defendant by the Claimant at the Defendants request together with debt recovery costs and commission.

2. Despite requests for payment, the sum of £7671.76 remains due and outstanding. In addition, the Claimant is entitled to interest upon the outstanding sum at the rate of 8% per annum pursuant to Section 69 of the County Courts Act 1984 in the sum of £1617.40 AND THE CLAIMANT CLAIMS 1. The sum of £7671.76 pursuant to the above. 2. Interest in the sum of £1617.40 pursuant to the paragraphs above. 3. Further interest upon the outstanding sum at the rate of 8% per annum pursuant to Section 69 of the County Courts Act 1984 from the date hereof at a daily rate of £1.68 until judgement or sooner payment. 4. Costs and court fees

( The original amount as per the very first letter we received from Redwood was £6676.85, which asked us to pay this amount within seven days)

Yes, the claimants representatives (Redwood Collections) instructed C W Harwood & CO as the address for sending the response to the original claim forms to. This is the address that was stated on the claim form that we sent the admission form and our I&E and monthly payment proposal to.

I hope I have been as succinct as possible answering the questions effectively. As I said, I will now get on with digging out every piece of paperwork from the school which may resemble a contract or agreement to t&c's. I will re-post tomorrow morning when I have the results.

One question, based on answer 3/4, should we consider cancelling the hearing for applying for the judgement to be set aside and immediately re-apply for an application to vary the order?

Will re-post tomorrow with the result of the document search!!

Please. no apologies necessary for the questions. Any help from someone more knowledgeable than us regarding the intricate detail of law is most, most appreciated. I'm probably gushing now, but many, many thanks in advance for your help. You really don't know how much we appreciate your help.

newuser43