Can they make me bankrupt?

grocerjack

bat-out-of-hell wrote: »

I agree, save that for when you know what cards they hold, if any.

I would also question why they issued an SD last OCT, but have done nothing untill now?

Could it be that your wifes OR has told them they wont be getting anything?

Do you know if they have staked a claim of any dividend of your wifes BR estate.

If they have, it may help add 'doubt' to there case;)

I don't know if they have if they have staked any claim of dividend, but she will ring the IP to find out. Hopefully that might lead to another 'defence'.

I've been advised to complete forms 6.4 and 6.5 and go for a set aside now even though I'm unsure if what I've received a an SD or just a copy of an SD they intend to send. It seems that procedurally an SD shouldn't be sent by email but should be delivered personally. I've also been advised to complete Subject Access Request and send that to them as well.

I'll be writing the letter tonight, finding somewhere to download the SAR form and then asking the courts for a set aside tomorrow.

Once again thanks:)

bat-out-of-hell

You may need to twaek it a bit to fit, as it is designed for creditors, so is a bit long winded for your needs i think

A subject access request which is an alternative to one being made for a charge reclaim. Geared more towards debt collection...You should send a £10 postal order with each one and address it to the Data Controller at each company (send recorded or guaranteed) they have to respond in 40 days






Data Protection Act 1998



Subject Access Request


Dear Sir/Madam

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

1. The original signed, executed credit agreement/s and any terms and conditions that applied to the account/s at the time of default and at the time the account/s was/were opened.


2. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR. - delete or add this depending on whether you are sending this to the original creditor/or a debt collection agency



3. True copies of any notice of assignment and default notices or enforcement notice that you/or name of the original creditor sent me, with a copy of any proof of postage that you hold.



4. Documents relating to any insurance added to the account/s, including the insurance contract and terms and conditions, date/s they were/ it was added and deleted. (if applicable).



5. Details of any collection charges added to the account/s; specifically, the date they were/it was levied, the amount of the charge, a detailed financial breakdown of how the charge was/charges were calculated, and what the charge covers/charges cover.



6. Specific details of the fees/charges levied by any other agency in respect of this account/these accounts and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.



7. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998



8. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.



9. Copies of statements for the entire duration of the credit agreement/s.



10.Termination notices

PLEASE NOTE that unless otherwise stated by yourselves and if the above documents are NOT provided, it will be CONFIRMED that you are unable to reproduce/provide in any way shape or form any copies of the above requested documents. You are reminded that you have a duty to inform me if you do not have the above documents. This is confirmed in High Court Law - Ezsias v Welsh Ministers - [2007] All ER (D) 65 (Dec)

You are reminded that you are obliged to supply all the above documents in line with the Information Commissioners Technical Guidance update (Dated August 2007)

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.
If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

Yours faithfully,

sign your name but put crosses through it so it can't be 'lifted'

bat-out-of-hell

And no, im not convinced a SD can be served by email either, if it can not telexed, i would think that rules out all electronic methods.

There do not seem to be any amendmants to the contrary

45.37 Service of the statutory demand
In the case of a registered company, the statutory demand is served by leaving it at the registered office of the company. In Re: A Company [1985] BCLC 37 Nourse J. held that a demand made by telex machine is not effective service of a statutory demand. He considered that the service should be regarded in much the same way as service of a winding-up petition. However, in Re: A Company (No 008790 of 1990) [1991] BCLC 561 Morritt J held that a statutory demand sent through the post to a company’s registered office had been properly served. In this case the demand had been sent by registered post and was acknowledged by the company. Morritt J. stated that it made no difference whether the act of leaving the demand at the registered office was carried out by the creditor personally or by the postman. All that was required to be proved was that the demand was left at the registered office. It would appear that proof of posting alone would not have been sufficient.
In the case of an unregistered company the statutory demand may be served by leaving it at the principal place of business of the company, or by delivering it to the secretary or some director, manager or principal officer of the company, or by otherwise serving in such manner as the Court may approve or direct.
Whilst courts do have jurisdiction to set aside statutory demands, this will only be exercised if there is a genuine dispute as to the existence of the debt (Re Janeash Ltd (1990) BCC 250).
Notes: [S123(1)(a)] [S222(1)(a)]
Setting aside of Statutory Demand

grocerjack

bat-out-of-hell wrote: »

You may need to twaek it a bit to fit, as it is designed for creditors, so is a bit long winded for your needs i think

Wow, magnificent stuff, many thanks. Doers the red bit mean a sort of watermark for crosses or just blanking the box with crosses and then signing it?

bat-out-of-hell

Any method you like, preferably witnessed, so you can tell just In case they 'try' to ‘create’ an agreement.

While I do not wish to say they might, I have been on the receiving end of a solicitor that had no scruples and forged several documents in a statement of truth.

Better safe than sorry

peachyprice

bat-out-of-hell wrote: »

An SD does not come from the court Peachy, so it wont, anyone can download one and send it by post to class it as served.

Im just not sure if recent updates to CPR would class it as served if sent by email, they might do.....

Sorry Bat, I thought they had to have a court stamp to stop anyone just knocking one up.

bat-out-of-hell

peachyprice wrote: »

Sorry Bat, I thought they had to have a court stamp to stop anyone just knocking one up.

So did i three years ago, seemed to make sense that they had to be to stop them being abused.

But they dont and is exactly why they are abused by creditors and DCA's as a scare tactic.

As we know, in most cases, they never have any intention of following through, but this is not a normal creditor, so the jury is still out though on this one.

Sorry for the bad pun:o

grocerjack

bat-out-of-hell wrote: »

So did i three years ago, seemed to make sense that they had to be to stop them being abused.

But they dont and is exactly why they are abused by creditors and DCA's as a scare tactic.

As we know, in most cases, they never have any intention of following through, but this is not a normal creditor, so the jury is still out though on this one.

Sorry for the bad pun:o

No problem anything that forces a smile is OK with me. I've written the letter ready for posting, will get a postal order for the £10 fee for Data protection information. I've done copies for the solicitor in question and copies for the Senior Partner in the firm as well as the Managing Partner. I've used a 'cross' background as suggested to ensure the signature can't be lifted (easily), and I've printed the 'set aside' form 6.4 which seems to be designed for completion at the court, but I've done a fairly detailed affidavit form 6.5 using some of the good stuff gleaned from here today, and National Debtline, Consumer Direct and Community Legal Service.

I've also read a bit about verbal contracts and it seems they are legally binding but generally very hard to enforce or prove unless witnesses were present.....and as i never agreed to this, nor in any conversations was anyone present ultimately it becomes his word against mine and I'm happy to swear to that in a court. Also, my wife is writing to the solicitors as well to reinforce the debt being declared to the OR and IP - in fact she handed all the paperwork and files over to the OR who said he would take it all....i.e no debts were excluded from the bankruptcy. That was passed to the IP, and she is contacting him to ratify that the fees were included as part of the BR estate. If that is the case and he confirms that then it appears I may have a counter-claim against them on two possible counts

1.) they were fully aware of the debt being under the jurisdiction of the OR and IP and hence this is an unauthorized approach to a 3rd party (me) to reclaim their loss

2.) If the OR or IP had excluded the fees from my wife's bankruptcy then they should have informed her and returned all of the paperwork. This has not been the case thus far - she was made bankrupt last September so we're 9 months on from that.

It does seem to me that aside from procedural errors, they are on quite shaky ground - apparently even if a judge decided I was liable then I have a right to appeal, but also they are forced to discuss repayment terms with me. I'm still seeking advice from all over the place but as yet no-one actually thinks I'm liable, and no-one thinks they can enforce and perceived implications of liability through any barely remembered conversations that took place 9 months ago.

Once again, thanks people, it's been quite cathartic coming on here and getting all the comments.

grocerjack

Afternoon everyone - I thought I'd update everyone who offered kind and helpful advice to my issue with a law firm. I did what everybody said and sent them this letter back in May(names removed to preserve anonymity)

Dear Mr. xxxxxx

I am writing this letter to you, with copies for xxxxx and yyyyyy as notice that I formally dispute the alleged fees debt for your company representing my wife in her bankruptcy case.

I have also sent your organization a Subject Access Request (SAR) form enclosed with this letter.

Please send me any copies you have of any evidence that you intend to rely on in court, as I have no recollection of any conversation where I agreed to act as a personal guarantor for my wife’s representation fees. Please note that at no point did I ever sign any written contract that would make me liable for any alleged debt. As requested in the attached SAR I have requested that you provide me with copies of all the agreements/contracts you will use in evidence against me in court.

I have applied to have any Statutory Demand (SD) set aside by the court.

During this stressful time my interactions with xxxxx and your organization were done purely as an intermediary for my wife, who was too traumatized by the whole episode to be able to communicate effectively. It is my contention that during this time you agreed to represent my wife solely, and that she was the sole instigator of engaging your organization to represent her. Any meetings I attended were done purely as moral and dutiful support as her partner to help her during this time.

At no point did I ever agree to act as a personal guarantor for any fees accrued during the course of her being represented by xxxxx. Hence my contention that debt is not mine to underwrite. Please also note that your organization was named and accepted as a creditor to the Official Receiver and subsequently the Insolvency Practitioner dealing with the bankruptcy estate.

I would expect a written response from you within 7 days, including any documents as requested, outside of those requested by the 40 days provided under the SAR.

Yours faithfully,

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

GrocerJack

I got a reply on Friday. They have enclosed a letter to me detailing the costs thus far, dated October 2009 which is one month after the bankruptcy hearing. They've included a letter proving their court attendance (big deal) and they cashed the £10 cheque and then refunded it saying they 'did not see the relevance'. They've asked me to stop the set aside hearing and pay the money or they'll push on to 'expedite' the bankruptcy.

Do I need to attend the hearing for the set aside..or is it purely for them to show proof? And should I be looking at legal representation for the set aside hearing (September 2nd)?

I have still only received an SD via email attachment, and they've patently refused to act upon the SAR ....I assume because they know they have nothing in writing from me, or via phone transcripts.

Any comments or further advice appreciated!

Thanks GJ

grocerjack

Hi Everyone

I was due to appear in court today for the set aside meeting, however late last night my solicitor rang me to say that the other party had agreed to allow the judge to set aside the SD, and something about a consent order. Also they will listen to any claim for costs and something to do with costs being assessed by the judge. She has also said I do not need to attend today.

In typical solicitor mode (it was a voice message) it was quite monotone in nature so I can't tell if its good news or not....although it sounds like the others have backed down if they've agreed to the set aside. If the SD is set aside does that mean it's over and I can start to live again without this hanging over me?

Any advice or comment is appreciated