Sattutory demand under section 268(1)of the inslovency act help urgent smith

[smith]

Hi there the wife had a credit card with halifax 7k we sent a cca request plus s.a.r and put the accont in dispute penaly charges could be ppi they never sent statments we requestd never got any thing back from halifax ....is 6 yrs in oct 2012..


And out of the blue we got a satutory demand from 1st credit finance 5 limited what my son signed for as we was out on part c
for completion if the creditor is entitled to the debt by way of assigment
original creditor bank of scotland plc
assignees 1st credit finance 5 limted
date of assignment 31 7. 1012
its signed by a insolvency manger he signed th s.d on 26.9.2012 we got on 28th .9.2012

the credit card was taken out befor 201 and was halifax and not bank of scotland as bank of scotland was nothin to with halifax then

and states the debtor enterd into contract with bank of scotland plc say
the creditor sent notice of assignment pursuant to the assignment of the debt
the creditor attempted to recover the amount outstanding by telephone and letter collection methods but the debtor has failed to pay money pursuant to the assigment of the debt to the creditor


the only letter she got was a statutory demand no phone as were xdirectory no body as it so we now they never phoned lol so were do we go from here all the help will good and help with letters

[smith]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

:beagle:

[Guest]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

This company has a history of handing out stat decs, despite a firm rap om the wrist a little while ago from the OFT. http://www.oft.gov.uk/shared_oft/pre...quirements.pdf,

It more than likely is a bluff, but it is advisable to apply for set aside just in case. The forms you need are on here somewhere or National Debtline are very helpful on these cases, in my experience.

I think you have 18 days to respond but i haven't looked at one of these for a while so i would double check.
Good luck

D

D

[Sparkie1723]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

Might be helpful. I successfully had two Stat demends set aside one against me and one against my partner
Sparkie

Statutory Demands

When to use and when to hold back. In the recent case of Collier v P& M.J. Wright (Holdings) Limited the Court of Appeal discussed the circumstances in which it is appropriate to issue a statutory demand, and those circumstances in which there is sufficient doubt or dispute concerning a debt to render the attempted recovery of it unsuitable for the insolvency sphere. The case provides further useful guidance for both businesses and lawyers who routinely issue statutory demands in order to circumvent the more protracted route of litigation in either the High Court or the County Court. An ill advisedly issued statutory demand spells bad news for a business, as it can be set aside, with the successful applicant recovering hundreds or, in some cases, thousands of pounds in costs from the person or business who issued the statutory demand. One can easily envisage a scenario in which a business or person is owed a relatively small sum, for example Ł1,000, and issues a statutory demand. The statutory demand is set aside, and the issuer is ordered to pay more than the disputed debt in costs alone. The test for when to, and when not to, issue a statutory demand should therefore be at the forefront of litigators and/or litigants’ minds when dealing with a claim to a fairly small sum, and/or a claim to which there is at least the semblance of a Defence. The facts of the Collier case are not particularly arresting or relevant. The facts are probably of more relevance to a discussion on the doctrine of promissory estoppel. It is the comments made by Arden LJ concerning the test to be applied when deciding whether or not to issue a statutory demand which shall be the focus of this article. Arden LJ pointed out that under Insolvency Rule 6.5(4) a court may grant an application to set aside a statutory demand where a debt is “disputed on grounds which appear to the court to be substantial”. Further, in paragraph 12.4 of the Practice Direction on insolvency proceedings it is said that a statutory demand should be set aside where there is a “genuine triable issue”. The burden of proof in an application to set aside a statutory demand rests firmly on the shoulders of the party making the application. The Judge discussed the unreported case of Keller v BBR Graphic Engineers (Yorks) Limited from 14 December 2001. Mr Roger KayeQC, sitting as a Deputy Judge of the Chancery Division, had given that decision. Mr Kaye had remarked that it seemed to him to have been plainly intended that an application to set aside a statutory demand need only meet a threshold that is lower than that applicable to applications for summary judgment under Part 24 of the CPR. The rationale he gave for that analysis was that the serious consequences of a statutory demand meant that they should only be upheld in the most clear cut of circumstances. The applicant in the Collier case seized on those comments and submitted that they meant that the applicant only had to show a “genuine triable issue”, rather than a “real prospect of success”, and asserted that such an issue was equivalent to a merely “arguable case”. Arden LJ disagreed with the approach of Mr Kaye and referred to the recent case of Ashworth v Newnote Limited [2007] EWCA CIV C793 in which Lawrence Collins LJ said that the debate as to a difference between a “genuine triable issue” and “real prospect of success” involved only “a sterile and largely verbal question” before going on to say that there was no difference between the two. It was said that whilst a refusal to set aside the statutory demand is a serious matter, so is the grant of summary judgment. If Mr Kaye were correct in his assertion, then on an application to set aside a statutory demand an applicant would have to show merely an arguable case. That would contradict the use of the word “substantial” in the Insolvency Rule, and the use of the word “genuine” in the Practice Direction. Arden LJ concluded that the requirements of “substantiality” or “genuiness” would not be met simply by showing that there was an “arguable” dispute. It was said that in order for an application to set aside a statutory demand to be successful an assertion as to a dispute must be “sustainable”. In assessing whether an argument is sustainable the court should examine the evidence before it, and also make an assessment of the law on which the applicant’s case is based. Arden LJ then discussed the evidence which should be produced. She said that the “best evidence” for the court would be “incontrovertible evidence to support the applicant’s case”. It would however, in general, “be enough if there were some evidence to support the applicant’s version of the facts, such as a witness statement or a document, although it would be open to the court to reject that evidence if it was inherently implausible or if it was contradicted, or was not supported, via contemporaneous documentation”. A mere assertion by the applicant that something had been said or happened would not generally be enough if those words or events were in dispute and were material to the issue between the parties. The end result was that there was no material difference on disputed factual issues between a “real prospect of success” and a “genuine triable issue”. A party which applies to set aside a statutory demand based on an implausible or inherently unlikely argument without any evidence to support it likely to find itself on the wrong end of an adverse costs order. On the other hand, a party which is considering issuing a statutory demand when there is a genuine or substantial dispute regarding the alleged debt, and evidence to support the position of the other party, should instead issue proceedings in the County Court or the High Court. Gibson & Co January 2008

[smith]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

not realy sure how to go about it

[Guest]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

Have a look here, the forms you need are here also.

http://www.legalbeagles.info/forums/...few-strategies

D

[Nikolai]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

It is 18 days as you say to apply to set aside to the court, details of which must be shown on the SD. Search this site for the forms or just search "setting aside a statutory demand" - there's loads of helpful info out there. What this article stresses is that you must have a good reason for applying to set aside. You might consider getting some legal advice. Many solicitors will offer a free initial consultation or a fixed fee consultation - just ask at their reception desk, but make sure the person you get to see knows about this area of law. Best wishes.

[bluebottle]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

This company has a history of handing out stat decs, despite a firm rap om the wrist a little while ago from the OFT. http://www.oft.gov.uk/shared_oft/pre...quirements.pdf,

It more than likely is a bluff, but it is advisable to apply for set aside just in case. The forms you need are on here somewhere or National Debtline are very helpful on these cases, in my experience.

I think you have 18 days to respond but i haven't looked at one of these for a while so i would double check.
Good luck

D

D

It is 18 days for an individual and 21 days for a company, Davy.

[smith]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

confused know

[TUTTSI]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

What are you confused about Smith?

You must set aside the Stat demand within 18 days ( when was this received?) if you have valid reasons to do so.

Also, the person sending that stat demand must have a valid deed of assignment to be able to issue a stat demand have you applied to them for this doscument by way of SAR? Once sent to them you will have a valid reason for set aside I believe.

I have just found on another thread posted by Millitant on this very subject, .( hope you don't mind Millitant xThereason you are requesting the Deed of Assignment and not the Notice ofAssignment is that you want confirmation that the account was assigned eitherby Equitable or Absolute (Legal) Assignment. That gives proof that the newcreditor can take action in the civil court under their own name as to Law ofproperty Act 1925. The key point is that you are entitled to see it to confirmthe assignee has good tital, and on what basis the Assignment was made

(Van Lynn Developments v Pelias Construction CoLtd 1968 [3] All ER 824).

Holwell Securities Ltd v Hughes - [1973] 2 All ER 476

Also, the amount on the stat demand has to be correct which it is not is you have credit card charges to come back and if that figure is not correct this is a valid reason for disputing this.

Have you paid or agreed to pay any money in last 6 years whilst the account has been disputed by you?

What date in October is the 6 years up?

Have you actually disputed the debt to these people that issued the stat demand?

You say they just send stat demand without writing to you first, maybe they know how near the deadline it is for collecting this debt?

What dates did you send the SAR and CCA requests and to who? Have they complied yet ???

[smith]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

sar and cca was sent to halifax just short of 6 yrs some time this month first credit fianace 5 limited have it stat demand states they bought the debt

[Meagainindisguise]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

If you have not paid anything or acknowledged the debt since Oct 2006 It looks like they are trying one last attempt before the statute of limitations kicks in. You must apply for the SD to be set aside. It's no good hoping it is a bluff then finding out it wasn't. You need a 6.4 and 6.5 (attached) if you need a hand filling in I will help you out, however, have a go. Do a bit of research and try. You will be the one fighting this so a little bit of work now will stand you in good stead. I will go over the dates again in the thread and post up what else we need to know to move forward.

Maid

[Meagainindisguise]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

Right then, the Set Aside has to be at court by close on the 16^th Oct. May I suggest you get it in and done for Friday 12^th Oct. That way you can chill over the weekend knowing you have started the ball rolling in your defence. As has been previously stated, the amount has to be correct, so do the contact details of the person named on the demand as the creditor on the front page. if you cannot contact them via the details given that is another plus for the set aside. No response to SAR and CCA request from the original creditor, vexatious litigant as well. All looking good for you. Most of all do not panic. This can be dealt with.

Does your wife have any interests in property?? The reason I ask is the SD is normally used by DCA’s to secure the debt on your property/force sale further down the road. If no property it is another thing to throw in with the vexatious litigant as they will not be able to secure their debt they just want to make you suffer which is not what the legal system (at least this one) is about.

Maid

[smith]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

yes she joint owns the house but i pay the morg my self she dosnt pay any thing to it

[smith]

Re: Sattutory demand under section 268(1)of the inslovency act help urgent smith

thanks all just looked at the forms could need help in wording legal form dont want to screw it up as our house depends on it lol