HELP !! Statutory Demand

[talktalk]

Re: HELP !! Statutory Demand

And your costs will need to be in the court file at least 24 hours before the hearing which is normally 1-3 months after you submit your set aside....

[talktalk]

Re: HELP !! Statutory Demand

You should google CPR31.14 unless there are some links on here (do a search), send off the CCA letter, make sure it is all done recorded delivery too. reasons for setting aside are

The defendant denies ever having had an agreement or account with reference number XXXXXXX

The claimant is in default of a request for a copy of the agreement as made under the consumer Credit Act 1974

The claimant has not provided any statements for the duration of the alleged agreement, neither has the claimant provided a default notice in the prescribed format, nor details of any potentially missold insurances.

The claimant has failed to provide any documentation under the Civil Procedure Rules

The claimant has not provided any proof that the debt is barred by the Statute Of Limitations Act 1980

You can find forms 6.4 and 6.5 on the UK insolvency website

[mpc1975]

Re: HELP !! Statutory Demand

Also just realised another quirk with their claim. When I took the credit card out it was in a slightly different surname as mentioned above. However when the last couple of years of payments where made they where made in the new surname. Just to explain that properly when Lloyds closed the account they moved it to a head office collections account which must have been associated with both of my other accounts with them. I continued to bank with Lloyds for a number of years and they where informed of my name change. So surely they should have updated my name details. However Lowell are chasing in my original name

[CleverClogs]

Re: HELP !! Statutory Demand

The claimant has not provided any proof that the debt is barred by the Statute Of Limitations Act 1980

Not barred, Shirley?

[WendyB]

Re: HELP !! Statutory Demand

Sorry to have to point this out, but if there is a CCJ for this debt then it will not be statute barred, even after 6 years has passed. I got the following from the Insolvency Helpline website

County Court Judgments

If the creditor has been to court and there is a County Court Judgment outstanding, then you cannot use the Limitation Act to dispute you owe the debt. It does not matter how many years ago the creditor went to court, the County Court Judgment will still exist. However, the creditor may not be able to enforce the Judgment without the court's permission if the Judgment is over six years old.[/I]

[talktalk]

Re: HELP !! Statutory Demand

Even with a CCJ after 6 years the emphasis falls on the creditor to explain why they haven't enforced it after 6 years, and I haven't heard of a single case where the CCJ has been enforced AFTER 6 years (if the debtor had faked their death or changed their name by deed poll then yes)....it usually states it in the particulars of the claim whether it had been the subject of a county court claim. If the debtor states that they do not recognise the numbers or the creditor has failed to provide any paperwork then by the time it gets to court (and without admission) then it is unlikely a judge will allow...
------------------------------- merged -------------------------------
How long ago did you change your name by the way ? As you can certainly tell the judge that you have been married for X years....

[mpc1975]

Re: HELP !! Statutory Demand

Hi Wendy, so what does that mean then overall shall i still still apply for the SD to be set aside. Also not 100% if I did have a CCJ on this, if I did it would have been over 8 years ago if not longer and i then made repayments against the debt to pay it off for a number of years. If there was a CCJ it was for Lloyds TSB and was sold to Lowell in 2008 so would that still apply??

[mpc1975]

Re: HELP !! Statutory Demand

Hi TalkTalk,

Name change was in 2003 and at that time I was paying the debt to Lloyds TSB from my Lloyds TSB bank account. Lloyds TSB bank had the deed poll advice sent to them at the time so were fully informed. However as by this point the debt was now moved to a head office collection account for which I had no contact deals when I sent my change of name update to Lloyds I just requested all accounts be updated. So no intended deception on my part.

[talktalk]

Re: HELP !! Statutory Demand

I can't make up your mind for you obviously, but they have proof of service, and it is certainly much harder to get the petition dismissed than it is the demand....any potential disputes are done at demand stage.

[mpc1975]

Re: HELP !! Statutory Demand

Hi again talk talk, not sure which part of the thread you are responding to above. Have type responses when other people have posted so has ended up a bit jumbled, still got my 'L' plates on . Is it the response I sent to Wendy you are responding to? If so I take it the other points you raised should still be valid for having it set aside.

Also have you any other advise on the fact that if there was a CCJ it was for Lloyds TSB over 8 years ago and not for Lowell, also Lowell have never mentioned any CCJ. Also I take it at worse case and it went to a demand in their favour I would still have the opportunity to settle?

[WendyB]

Re: HELP !! Statutory Demand

I think you should go for the set aside, as you are very close to running out of time. Then cross the CCJ bridge if and when it arises.

[mpc1975]

Re: HELP !! Statutory Demand

Ok have now printed off forms from insolvency site 6.4 and 6.5 and ready to write them. Also have done CCA request.

For the forms 6.4 think I might need help filling them out. So any assistance greatly appreciated

I have had a look at the thread by ibmarcos to try and get some ideas can I use the same, I have posted below

I have no knowledge of the referenced account as stated nor that the debt is payable to Lowell Portfolio. I have requested from them evidence that the debt is owed to them by requesting a true copy of the credit agreement which under the terms of the Consumer Credit Act s78(1) they have 12 days to supply from the date of my request.

Also, as I understand that Lowell Portfolio are a Debt Collection Agency I have requested a true copy of the executed deed of assignment for the agreement they quote (and whose reference number I have no knowledge of).

I have received no notice of the assignment from Lloyds TSB concerning any account in accordance with s136 of law of Property Act and served in compliance with s196 of the same act.

I am minded to mention also that Lowell Portfolio have recent numerous warnings from Leeds Trading Standards as to their conduct in issuing Statutory Demands that they are using as a threat to bankruptcy when they have no intention to follow through the process and actually serve bankruptcy proceedings upon a debtor.

Should Lowell Portfolio be in a position to supply me with the above information and prove there is a debt owed to them by myself I will happily discuss this matter.

------------------------------- merged -------------------------------
Do I also need to put statute barred in just in case it is ??

[mpc1975]

Re: HELP !! Statutory Demand

Also for the person who posted the SD, when I called him he never metioned anything other than a debt to Lloyds TSB and also when he posted it through the door the following week he didn't knock and the envelope was plain white with name address and post code hand written. No marking of urgent so is that bringing adequate attention to it??

Sorry for lots of posts just different things keep popping into my head and I am really clueless, so your patience and assistance is really appreciated

[mpc1975]

Re: HELP !! Statutory Demand

I have attached the competed forms 6.4 and 6.5 here so hopefully someone has time to have a quick look, due to Lowell screwing with the dates I am running very short of time. Spoke to the court and explained about dates but they just said to get the form in ASAP. So I am looking to get it in latest first thing tomorrow.

have done in red anything I have done, not sure of I should add anything else.

I know everyone is very busy so I really do appreciate any help.

Should I also add this -

The claimant has failed to provide any documentation under the Civil Procedure Rules

The claimant has not provided any proof that the debt is barred by the Statute Of Limitations Act 1980

Also what should I do about the wrong surname

[talktalk]

Re: HELP !! Statutory Demand

I think you need to edit it a little.....and you can't state the civil procedure rules unless you have sent them a letter requesting documentation USING the se CPR's....if you have sent a separate letter to them requesting what they have stated in the particulars using recorded delivery then you CAN state that you have requested documentation under the Civil Procedure Rules.

The defendant totally disputes the alleged debt.

The defendant has NEVER had any kind of account reference number as stated by the claimant in their particulars.

The defendant has not provided any proof that the debt is barred by the Statute Of Limitations Act 1980

The claimant has not provided any details of any insurance products that were added potentially in error/possible fraud which would potentially bring any agreement under question.

The claimant has not provided any statements for the duration of the alleged agreement

The defendants name is completely incorrect on the demand.

The agreement - the claimant is in default of a request for a copy of the agreement made under The Consumer Credit Act 1974 - the defendant requested a copy on (date) and to this day the agreement upon which this demand is based has not been provided.

DEFAULT NOTICE

The Need for a Default notice

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

• Notwithstanding the above points, the defendant puts the claimant to strict proof that any default notice sent to the defendant was valid. It is noted note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendmentregulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

EXCESSIVE CHARGES

1 - The Claimant’s charges which may have been applied to the account are unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, it is likely that the alleged claimant/ or original creditor has charged an amount that is not proportionate to the amount of any payment not made.
2 - Further, or in the alternative, the claimant’s or the original claimants charges are a disproportionate penalty and therefore unlawful and irrecoverable at common law. (Dunlop Pneumatic v New Garage [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963)
.THE PERFECTION OF THE ASSIGNMENT

1 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.

2 Since the claimant should have a sent a notice of assignment it is assumed that this was done via the postal service.

The requirements for service via the post are

Law Of Property Act (1925) s196
.
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 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.

3.2 - 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
3.3 -. the defendant did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and the defendant has asked the other members of my family if they signed for such a document; they have assured the defendant that they did not.
3.4 - To the best of the defendants knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent

On the above information the defendant requests that the demand is set aside and requests costs in favour of the defendant as a LITIGANT IN PERSON.

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner)