Unenforceability & Template Letters

Bleddry

I just deal in cash - sorry.
I only have debt with HSBC and am dealing with DG sols. having already gone thru Met. collection & Moorcroft. The debt is personal, but all business related - a business that the bank helped my ex partner set up and arrange finance for.
The card was used for the business at my then partners request. I was reluctant, as the only reason I took the card the bank offered me, was as a safety net for my second child that was due. So I requested the transfer through the bank, thinking they would not let it go through, as it was a personal card for personal use only. Unfortunately they did transfer the funds to the business account, and then called in the business loans a couple of months later. I genuinely have nothing on paper relating to this debt, as my ex had all paperwork, and now can not locate any of it. I decided to request copies, along with details of joint current and loan accounts, as I expect I will have little alternative but to go BC, which will have little effect on me, as I already live like one - hence cash only, it's best!
As I have no assets and very little 'cash', I do not pay to send things recorded delivery, but go for the cheaper option of 'proof of posting'. I keep records of all letters and dates sent/received etc.
What is the problem with sending in cash - it is only £1 after all? Can they not be trusted with such a small amount of money? Am I really as naive as you are making me feel? Is there life after death - I hope not, I really could not go through this again!!

never-in-doubt

See letter on prev page -#99 - send that and they will start to take you seriously. From here on in you have to follow these simple rules though:

1. No phone chats - if they ring you, hang up! Do not get drawn into discussions with them

2. Do not pay a penny!

3. Sit back and watch them wallow in their own mess. each time they mess up it is more help to you cos the judge will see they are useless and may award in your favour based purely on the actions of the lender (assuming worse case that you took them to court!).

They are not allowed to harass you either, so if they start ringing and/or writing to you just post details here and be calm. You hold all the A cards - not the lender.

Bleddry

My God you're good, and so fast - I think I may sleep a little better tonight!
Thank you so much for your time and effort, I will send the letter you kindly wrote off tomorrow. Then wait and see.

never-in-doubt

Bleddry wrote: »

My God you're good, and so fast - I think I may sleep a little better tonight!
Thank you so much for your time and effort, I will send the letter you kindly wrote off tomorrow. Then wait and see.

LOL, no worries. Anytime you need help post on here or PM me and we'll look after you.

I noticed a typo in the last line of the letter - just amend the word FOLL to say FOOL ::>>

By the way, the reason we say never ring them or anything is cos doing it in writing is proof of what is said. Verbally you have nothing to fight with.

Also, no-one deals with cash lol, they should have returned it to you in fairness. In future if we suggest you get a SAR or something which costs a few pounds - send a Postal Order LOL - not cash!

You're not naive at all, we all have ups and downs - just stand high and fight them head on, you'll be surprised how much you'll learn from all this. Obviously dont just send the letter - read it and see what I mean, you are dictating the law to them and correcting their mistakes with their own legal knowledge. This all counts towards you if it went to court.

By the way, it would be you taking them to court! Not the other way around. I do think though, if it is HSBC, that they will provide the CCA as requested. If it was a credit card in the exes name then you are not liable and should tell me asap lol as that would affect things big time!

Maybe that is why they will not send you the agreement, it could be the exes signature they have...?

I gotta ask, it is in your name right? You are sure about this?

(all the ladies say i'm good, just the fast bit i'm worried about) hehe

stop-the-world-i-want-off

Hi all, very new!

Can someone help please? My husband and I have been in a DMP with Payplan for a year. We got into trouble a couple of years ago when I was on maternity leave and my husband was made redundant. As well as some credit cards we have a £36,000 loan (pre 2007) with NatWest, which we have been paying off monthly with the DMP although PayPlan had to go back to NatWest a few times to get them to agree to it. Yesterday a "heavy" appeared at the door, with a Statutory Demand in my name only. The front page was on NatWest letterheaded paper, but in the "official" document it says that all communication should be addressed to Tenon Recovery Ltd. I have 18 days to apply to the court to have the demand set aside (what ever that means) and 21 days before the creditor may present a bankruptcy petition. Can you give me any advice on what I should do now? Is it worth going the "unenforcable route"? Sorry this has gone on a bit, but I haven't slept a wink!

Bleddry

Morning!
Just thought I would re-read your info to be sure I get things right this time. Thank you so much for all your kind advice.
Regarding the CC, I'm sure this was in my name. I was heavily pregnant at the time, and very stressed (still am) as unable to have maternity leave, and worked right up until and including day of birth (only 30 mins spare!!). Then back in to work the day after, with child under one arm, laptop under the other!!! But all to no avail...
I don't like CC's but at the time took it as security, thought it would make me feel less stressed and therefore reduce chances of harming unborn child (ridiculous scenario I know - being worried about what the worry would do to my baby!). Pressure of saying 'NO' to ex over transferring funds too much for me at that time, so thought by asking the bank to do it, they would refuse, so it would not be me saying 'NO' - if you see what I mean. Also, I did not want to act in an underhand way, as it was a personal CC meant for personal use only. But they did the transfer - the CC was with HSBC, as was the business account - so they would have been aware of all circumstances at the time.
Still, that was all a few years ago now, and here I am still trying to put it all behind me!
I will amend the letter as you pointed out, and send it off today.
I will keep you posted as to any progress I make.
Have a good weekend and I really can't thank you enough - even if nothing comes of the letter, it's been good to have someone to talk to.
PS - My Ex was not a bad person and is a great father - he tried very hard to make the business work, but desperate people take desperate measures and the repercussions have taken their toll on our relationship - I am hoping we will remain just good friends.

Bleddry

Oooops... there is another plea for help prior to my post, please see theirs as well.
Sorry.

never-in-doubt

stop-the-world-i-want-off wrote: »

Hi all, very new!

Can someone help please? My husband and I have been in a DMP with Payplan for a year. We got into trouble a couple of years ago when I was on maternity leave and my husband was made redundant. As well as some credit cards we have a £36,000 loan (pre 2007) with NatWest, which we have been paying off monthly with the DMP although PayPlan had to go back to NatWest a few times to get them to agree to it. Yesterday a "heavy" appeared at the door, with a Statutory Demand in my name only. The front page was on NatWest letterheaded paper, but in the "official" document it says that all communication should be addressed to Tenon Recovery Ltd. I have 18 days to apply to the court to have the demand set aside (what ever that means) and 21 days before the creditor may present a bankruptcy petition. Can you give me any advice on what I should do now? Is it worth going the "unenforcable route"? Sorry this has gone on a bit, but I haven't slept a wink!

I think you first need to speak to PayPlan and then read the following links:

This explains SD's a bit better for you - the official publication: http://www.insolvency.gov.uk/pdfs/guidanceleafletspdf/statdemand.pdf

Link 1 - Learn all about Bailiffs and their rights

Link 2 - Learn about unenforceability

Link 3 - Learn about Statutory Demands

Link 4 - Copy of a Stat Demand

never-in-doubt

The following was borrowed from CAG. Taken from CAG - Thanks Gizmo111

Debt Collection agencies & Statutory Demands

(Strategies)

Of late, more and more Debt Collection agencies seem to have a penchant for bankruptcy proceedings rather than going down the traditional route of County Court money judgments. It may seem that these agencies send out Statutory Demands purely as a scare tactic but each case should be treated as if the intention is to issue the Creditor’s petition.

The service of a Statutory Demand can be by various means, it may be possible to speculate on how serious the creditor is depending on their choice of service, however, the fact that the demand is posted shouldn’t allow an assumption to made that the creditor will not follow up with the petition. 1st Credit/Connaught have been sending their Statutory Demands out via 2nd class post, this I was hoping to challenge.

The wording of CPR PD INSOLV 11.1 states: "where it is not possible to effect prompt personal service, service may be effected by other means such as first class post...", which does not entirely rule out second class post. However, it would probably be possible to obtain an extension of time in which to respond to the demand if sending it by second class post meant that it actually arrived later than the seventh day after posting, which is deemed to be the date of service for a Statutory Demand sent by first class post.

Under further investigation of the Insolvency practice directions it should be noted that the service of the Statutory Demand should only be served by post if the creditor has tried to bring it to the debtor’s attention via a personal service, where possible. The process involved is set out in CPR PD INSOLV 11.4 .


The creditor is under obligation to take reasonable steps to bring the demand to the debtor’s attention and if, practicable, personal service should take place. Where this is not possible, the creditor is allowed to serve the demand either via post or through a letterbox, but it is expected that following steps have taken place first:

• One personal visit to each of the debtor’s known residencies and places of business
• If it is not possible to serve the Statutory Demand during the visit(s), a letter should be sent to the debtor making her/him aware of the visit(s) have taken place and purpose of the visit(s). The letter should also state that another visit will be made for the same purpose and specify the date, time and place. At least two business days’ notice must be given. The letter should also state that if the time and place are inconvenient, the debtor should name a reasonable alternative. The letter can also state that if the debtor fails to keep the appointment, the demand will be posted/inserted through a letterbox and, if a bankruptcy petition is presented, the court will be requested to accept this as a service of demand. Copies of the letter should be sent to all known addresses of the debtor.

If the creditor presents a bankruptcy petition to the court, an affidavit has to be sworn giving details of service of the Statutory Demand. If a demand was not served personally and no written acknowledgement of service has been received from the debtor, the creditor must set out the steps it has taken to ensure the demand has been served on the debtor. If the court is not satisfied that the creditor has carried out their obligations, it can refuse to issue a petition.


So, to move forward with challenging the creditors there are a few things the debtor could consider doing.

• Check whether the creditor or agency has the right to chase the debt in the first instance. Has the debtor received a default notice? If the debt has been transferred, a notice of assignation?
• Request a copy of the agreement/statement of account under s77-79 CCA 1974. Some debt collection agencies are very bad at having the correct paperwork; some might try and fob you off with an application form. Check if the amount being chased is inclusive of any excessive fees and charges. There may be the opportunity to have the Statutory Demand set aside on the grounds that the debt is disputed. It could well be that the debtor has a counterclaim equal or greater than the sum claimed by the creditor.
• The demand doesn’t comply with the Insolvency Rules 1986, in this ground it must be shown that an injustice has been caused, eg, the demand is confusing and the debtor cannot reasonably understand the true position between her/himself and the creditor.

Stopping the Creditor’s Petition

If all attempts to halt the Statutory Demand fail it is still possible to avoid bankruptcy. Any opposition to the order being made will need to be filed at least 7 days prior to the hearing setting out the grounds. In order to justify a dismissal, the debtor would need to show a “substantial injustice”. The courts’ powers to make a bankruptcy order are discretionary, under r6.25(1) IR 1986 a court may make an order if it is satisfied that the statements in the petition are true and that debt on which it is founded has not been paid or secured or compounded. s271(1) IA 1986 prohibits the court from making a bankruptcy order unless it is satisfied that:

• The debt has not been paid; or
• The debt has not been secured to the creditor’s satisfaction; or
• The debt has not been compounded for; or
• The debt is one which will become payable in the future and the debtor does not have a reasonable prospect of being to pay it when it becomes due

s271(3) IA 1986 gives the court power to dismiss the petition if it is satisfied that any of the following apply:

• The debtor is able to pay ALL her/his debts; or
• The debtor has made an offer to secure or compound for the debt and the creditor has unreasonably refused it. (The onus would be on the debtor to prove that the debt was unreasonable refused – the offer would have to be realistic and practicable. A creditor is entitled to consider their own interests, but a rigid application of an organisation’s policies could amount to “institutional unreasonableness”. My own interpretation is that if a creditor doesn’t adhere to the OFT debt collection guidance then I would argue there is institutional unreasonableness being carried out. Whether or not a judge would agree is another story!

Other possible defences:

• The debt is subject to a judgment or order of the court which is payable by instalments and no default has occurred or enforcement has been suspended
• The debt is subject to a judgement or order of the court and an appeal is pending.
• It might be possible to apply for a Time Order under s129 of the CCA 1974.
• The debt is subject to a judgment or order, but the court considers, in the particular circumstances of the case, that this does not prove there is a legitimate bankruptcy debt .
• The amount of the debt was overstated on the Statutory Demand and the actual amount owed has been paid within 21 days of service.
• The debt is £750 or more but there is a bona fide dispute, which would bring the undisputed amount to below £750.
• An IVA interim order has been made
• There is an outstanding application for the Statutory Demand to be set aside.
• If any of the rules have not been complied with or the court feels that the petition should be dismissed or proceedings stayed “for any other reason”.

In summary

As it seems that the use of bankruptcy proceedings is likely to increase the question should raised whether or not it is fair for debt collection agencies to use these tactics as a first resort. The whole question of “is it reasonable?” should be aired and the debtor should certainly consider complaining about any unfair tactics adopted by these firms. Is a debt collection agency “fit” to hold a consumer credit licence if they seem not to adhere to the OFT’s guidance on debt collection guidance? Here is hoping that the recent changes to allow the FOS to investigate consumer credit complaints and the forthcoming changes to the Consumer Credit Act assist in preventing growth in this current oppressive trend.

Things to check

• Was the Statutory Demand served correctly?
• Are there any possible grounds to set the Statutory Demand aside?
• Does the Debt Collection Agency have the right to chase the debt?
• Is it likely that the DCA will issue a Creditor’s petition?
• Is it possible to oppose the Creditor’s petition?
• Is it possible to arrange an alternative to bankruptcy? (i.e. Voluntary Charge)

stop-the-world-i-want-off

Thanks for that. Will speak to PayPlan in the morning. The thing I am confused about is that we have been paying NatWest £90 per month for the last year as part of the DMP (which is up for review next week) which NW agreed to. Looking at the links you suggested I think this must stand me in good stead for having the SD set aside, which has been issued by Tenon and not NatWest. I also cannot understand why the demand is in my name only, when the loan was a joint loan with my husband? Is it possible that they will only come after me, and is it possible for me to be made bankrupt and not my husband? Can I look at unenforcibility while this is going on or should I try to get this sorted out first. Sorry about all the questions again - I am trying to get mad rather than sad!!! :mad: