I WON!!!! Served with a statuory demand by BW Legal/Lowell

[pt2537]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Good morning

I would make the application to set the demand aside.

The difficulty you have is that if they now go away and comply with s78(1) Consumer Credit Act, which the higher courts have confirmed can be done at any time before judgment is given, and in this case, before a petition for bankruptcy is submitted.

So,if you havent applied and they comply with s78 they will be open to submit the petition.

I would apply to set aside, then invite the opponent to enter into a consent order which they should file with the court, to formally withdraw the demand.

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

I now have the forms and i have to do the witness statement and i'd be extremely grateful for any advice guidence. According to the statement | have to insert one of the following:

(c) Insert one of the 8 following alternatives or if none of them areapplicable state grounds on which you consider the statutory demand should beset aside

(1) “Do not admit the debt because…” [here state grounds] or

(2) “Admit the debt but not that it is payable immediately” [state reason], or

(3) “Admit the debt as to £ , and that this is payable but that theremainder is not immediately payable. I am prepared to pay the amount of £immediately” [state reason], or

(4) “Admit the debt and am prepared to secure or compound for it to thecreditor’s satisfaction by …” [statenature of satisfaction],

(5) “Say that the debt is a secured debt” [give full details of security andits value],

(6) “Have a counter-claim (or set-off or cross demand) for £ being a sum equal to (or exceeding) the claim in respect of” [here state grounds of counterclaimetc.],

(7) “Say that execution onthe Judgment of the Court has been stayed” [give details]

(8) “Say that the Demanddoes not comply with the Insolvency Rules in that ………” [state reason]

I'm guessing option 1 and explain that i am in dispute with barclaycard (the original ceditors) which was never resolved and therefore under OFT Guidance thw debt should never have been sold/passed on to an alternative party?

If i'm using this excuse do I mention the CCA part and can i include all the documents posted above as additional evidence.



On a seperate note the company have told ne that they have written to me to confirm all action is suspended, if this letter does actually materise and is sent to me, should i include it in the witness statement appendix. If what they say is true i should have the letter tomorrow..... but i'm not holding mmy breath!!!

[pt2537]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

DO NOT rely on their sweet gestures, ok, be clear on this, if you DO NOT apply to set aside, they CAN petition for your bankruptcy. im not trying to scare but it is a fact you really need to get in your thoughts here.

Did you sign an agreement?

Did you recieve a Default notice?

Did the creditor reply to your s78 request?

I have an affidavitt i used in my own case a while back ill happily post up, but you must run this as if the demand is to be set aside in my opinion until you get confirmation that they have written to the Court withdrawing it

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Does this sound ok to use?

I do not admit the debt because I am in dispute with the original creditor since January 2009 (Barclaycard) and the original company has not resolved my dispute they should not have sold/passed the alleged debt on until the dispute has been resolved.


I attached to this witness statement evidence of the dispute and the original creditor responses. I have also included evidence that the original creditor tried to pass this alleged debt onto another debt agency who returned it to the original credit to because of the dispute.


I believe that Bwlegal and Lowell issuing a statutory demand is an abuse of power and they are going against the guidelines for debt collection and because they have not liaised with me prior to this statutory demand. Had they done so I would have informed them of the dispute and requested the alleged debt is passed back to the original creditor.


I humbly ask the Court to consider dismissing this statutory demand and instruct Bwlegal and Lowell to resolve the outstanding dispute before making any further applications to the court regarding this alleged debt.

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Firstly thank you so much indeed for all your help, it is really appreciated and i am incredibly grateful for you goving up your time to assist me, thank you very very much xxx

I totally agree and I wouldn't believe the comoany if the told me the sea was wet!! There is no way i amm going to trust them and will enter a set aside application to make sure i've got my back covered. I'm not sure how do this though.

I probably signed the original barclaycard application but BC have never produced anything with my signature on it.

Probably, but I can't find any evidence of it

They responded by photocopying terms and conditions from the time the card was issued. They have sent nothing with my name or an account number on it, execpt on the letter ssying this complies with your CCA request and stapled the T&C to the letter. I have attached their response letter

[ODC]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Please heed the advice of PT. You MUS apply to get this set aside. BW Legal work for Lowell so that is one good reason not to trust them verbally. Get it set aside and you have effectively made Lowells impotent.

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

I fully intend to apply to set the application aside. Is the witness statement above good enough to achieve that or does it require further work I need to get the set aside sent off asap, so any help would be gratefully received.



Many thanks

[pt2537]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

1) Do not admit the debt is recoverable because the enforceability of the alleged debt is in dispute, the creditors right to demand immediate payment is also disputed at this juncture:


The Respondent alleges that the Applicant is indebted to it in the sum £............., being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”). It is further alleged in the body of the statutory demand that the debt was assigned to the respondent from ........................ on .................... The Applicant will say that the statutory demand should be set-aside upon the following grounds;


a) The Applicant accepts that the debt exists, however the enforceability of the regulated agreement underpinning the debt is disputed. There are numerous breaches of the Consumer Credit Act 1974 which require proper investigation. Details of the aforesaid breaches are set out herein. The applicant believes that the bankruptcy Court is not the appropriate place for such investigations to take place.


b) The respondent is put to strict proof that the alleged debt has been properly assigned.


c) The Respondent has demanded the full outstanding balance to be paid immediately. The Respondent is put to strict proof that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.87 & 88(1) thus giving a right to demand immediate repayment of the sums claimed. The Applicant has not received any Default notice from the Original Creditor or the Respondent. Accordingly the Applicant will say that s87(1) Consumer Credit Act has not been complied with and the respondent is not entitled to terminate the agreement or accelerate the earlier repayment of the debt. The Applicant will rely upon the High Court case of Harrison v Link in support of the proposition that a Default notice is a statutory precondition of enforcement ( see para 75 of HHJ Chambers QC ruling). The Applicant will also say that no notice of sums in arrears have been served on the Applicant contrary to s86(c) Consumer Credit Act 1974 and accordingly such a breach renders the agreement unenforceable while the breach continues. The Respondent is also subject to a statutory bar on charging interest while in breach of the aforesaid provision.


d) The Respondent is in breach of s78 Consumer Credit Act 1974. In ................. the Applicant made a request pursuant to s78 (1) Consumer Credit Act 1974 to the original creditor................ The request was in writing and was accompanied by the statutory one pound fee. The ..................... failed to comply with the request made under s78(1) and accordingly remains in breach. The Applicant refers the Court to s78(6) Consumer Credit Act 1974 which precludes the Respondent from proceeding with bankruptcy while it remains in breach. In the event that the Respondent seeks to avoid its obligations by suggesting that as an assignee it has no duty to comply with s78, then the Respondent is referred to Jones v Link Financial Ltd [2012] EWHC 2402 (QB) (22 August 2012) which affirmed that the duty to comply with s78 transfers to the Respondent on assignment.

e) The Demand does not set out the correct court which this application should be made. Accordingly the demand fails to comply with rule 6.2(1)(D) of the Insolvency Rules 1986.


f)The applicant refers the court to the judgment of Mr Justice Warren in the High Court in the case of Hammonds (a firm) v Pro-fit USA Ltd [2007] EWHC 1998 (Ch) at Para 27.


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).

g) In respect of judgment of Mr Justice Warren as set out above the Applicant avers that there is a clear dispute in relation to this debt, the enforceability of the agreement is subject to challenge on both s87 and s78 grounds. The right to demand the full balance is also open to challenge.


h) The Applicant has not been provided with a statement of account showing how the sums said to be payable have accrued. The Applicant cannot even begin to consider what if any of the sums stated in the demand are payable, notwithstanding the points set out above, until the Respondent provides the aforesaid statements the Applicant is unable to consider any potential defence of set off that the Applicant may be able to raise.    

The above was used on a 6.5 recently to set aside a demand.

It was a quick draft so not entirely something that i was able to sit down and go through as long as i would have liked but it may assist you

 

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Wow!!!! thank you so much for the above, I am eternally grateful. With your kind permisson may I copy the above and use it - I'll submit all the evidence I have of the dispute, plus BWlegal letter that came today.

Surprising (NOT!!!) it doesn't mention about suspending any action, just that my request has been acknolwedged and they are asking Lowell for the info but this may take longer than they hoped for because Lowell may need to obtain the information from the original creditor. I would have thought that there is a very silm chance Barclaycard have the info - as they would have supplied it in 2009 when I made unteen requests for it and then put in a formal dispute that has never been resolved.

On the plus side at least they have acknowledged a dispute is in force, so it may help my set aside application for the judge to see that BWlegal acknowledge a dispute exists.

I'll get all of this printed out and sent special delievery to my local bankruptcy court on monday, so it shuld get to them Tuesday, which is 8 days after being served. My local court told me that it has to be dealt with at the bankruptcy court. I'd hand delievery them but the local bankruptcy isn't actually the court most local to me, but is instead 30 mile away.

[TUTTSI]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Does it not state the court on the stat demand?

Have you checked that the court stated on that form is a bankruptcy court as not all county courts deal with set asides.

[pt2537]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Does it not state the court on the stat demand?

Have you checked that the court stated on that form is a bankruptcy court as not all county courts deal with set asides.

oh hang on, i missed that.

That i believe is a breach of the insolvency rules.


Ill double check that one and if so ill add a line to the above.

The blanks need filling in with dates and creditors where appropriate of course.

[TUTTSI]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

It is worth checking as I have known people to issue stat demands incorrectly and just choose a court near to you but not necessarily a court which deals with bankruptcy matters. So definitely make sure it is a court that deal with bankruptcy matters.

oh hang on, i missed that.

That i believe is a breach of the insolvency rules.


Ill double check that one and if so ill add a line to the above.

The blanks need filling in with dates and creditors where appropriate of course.

[pt2537]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

ok amended it now

it seems to fall on rule 6.2(1)(d)

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

So if i understand this correctly, because they have quoted my local court (2 miles from home) which does not deal with bankruptcy matters instead of the court that does (which is the one 30 miles away), this may play out in my favour?

I have completed the blanks and its now ready for printing and sending along with all the other evidence I have
the CCA original request,
the reminder,
the letter from BC saying that by priniting off the T&C consitutes their obilgation is fullfilled under CCA),
the letter from me saying it doesn't and making a formal dispute and advising I will not be making any further payments until the dispute is resolved,
a letter to calders informing them of the dispute,
The Stat demand (with the wrong court listed on it),
Letter from BWlegal stating they have re requested the info from Lowells and if necessary Barclaycard if Lowells don't have it.

Is there anything I need to do before sending it 1st class special delivery to my bankruptcy court?

[fuzzybrain]

Re: HELP!!! I've just been served with a statuory demand by bwlegal/Lowell

Forgot to add - thank you very very very much for you amazing and fabulous help with this. I couldn't have done any of this on my own and I would have been up do do creek without a paddle!!!