Statutory Demand threat

[Norbert]

Hi all

I have been in dispute with Co-op Visa (credit card) for the last few months over what I say is an unenforceable agreement under CCA 1974. the amount in question is £4,900.00.

The agreement was taken out in 1993 but when I requested a copy of the original agreement including the Prescribed Terms (as required under the CCA), all they sent back was a barely legible copy of the original credit card application form. The only records they have date back to 2005 - there is nothing beyond that.

The original application form does not detail any of the prescribed terms (as required by law), so I deemed it as not properly executed under s127(3) of CCA 1974 and therefore unenforceable.

I have informed the bank that the agreement is not enforceable and cannot be made so quoting House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul). I also informed the bank that as the original agreement was not properly executed, it has never been a legally valid agreement, and therefore I would be counter-claiming charges and interest levied by them (plus statutory interest) dating back to the date when the account was opened and which currently amounts to £22,586.00.

I have been going to and fro with the bank and the usual threats by them of debt recovery action, civil court etc., but today they wrote threatening a Statutory Demand and personal bankruptcy proceedings.

I've looked through these forums and I can't see anything much about SD being used to try and enforce these types of debt.

It seems to me that if they do file for an SD, my response needs to be that it is a disputed debt and also that the bank has tried to side-step the civil courts (as the law has already been decided in the House of Lords); as such any ruling would likely not be in the bank's favour, in terms, it's an abuse of process.

Has anyone else had the threat of an SD and if so, what was the outcome?

Cheers

Nick

[PlanB]

Re: Statutory Demand threat

today they wrote threatening a Statutory Demand and personal bankruptcy proceedings.

Hello Norbert and to AAD.


May I get straight to the point - is the letter you've received from the Co-Op actually headed a Statutory Demand under section 123 (1) (a) or 222 (1) (a) of the Insolvency Act 1986 or something along those lines?

Has anyone else had the threat of an SD and if so, what was the outcome?

Yep, I've had a SD which was set aside but you have to act fast because you only have 18 days to tackle this. What's the date on your letter?

We need to establish asap whether it's a "threat" of a SD as you say, or the real deal.

[PlanB]

Re: Statutory Demand threat

therefore I would be counter-claiming charges and interest levied by them (plus statutory interest) dating back to the date when the account was opened and which currently amounts to £22,586.00.

One more quick question. On what basis are you intending to make a £22k counterclaim? Is this all bank charges and interest added to the account since 1993 when it was first opened? Were none of those charges legitimate?

[Grassy_K]

Re: Statutory Demand threat

I'm in the same situation - barely legible agreement and no PT's from Co-Op. Good luck.

[Norbert]

Re: Statutory Demand threat

Hello Norbert and to AAD.


We need to establish asap whether it's a "threat" of a SD as you say, or the real deal.

Hi

The letter received is only a "threat" letter saying that they think the best course of action is to seek an SD and then personal bankruptcy.

On what basis did you get your SD set aside?

I'm counter claiming as my view is that if the original agreement was not properly and therefore legally executed then they had no right to charge fees and interest and therefore I'm entitled to that money back.

[Norbert]

Re: Statutory Demand threat

I'm in the same situation - barely legible agreement and no PT's from Co-Op. Good luck.

Hi Grassy

Where are you at with Co-op?

[Never-In-Doubt]

Re: Statutory Demand threat

Norbert, planB is the same person that spanked Santander & changed millions of customers status' (if they know about her success) - and tbh your ridiculous counterclaim will be scoffed; chewed and spat back at you by a judge. Under what case law or precedent are you citing wrongdoing?

In law your opinion matters little (with respect); so base your defence on legal precedence and please be so kind to elaborate on why you feel you have a counterclaim?

p.s - the case I mention --> https://www.legalese.org.uk/index.ph...nder-vs-mayhew

Thanks

[PlanB]

Re: Statutory Demand threat

if they do file for an SD, my response needs to be that it is a disputed debt and also that the bank has tried to side-step the civil courts (as the law has already been decided in the House of Lords); as such any ruling would likely not be in the bank's favour, in terms, it's an abuse of process.

If they do serve you with a SD then you need to post up on here so we can help you get it set-aside on the basis that there are "triable" issues which should be dealt with in the county court not the BR court. You'd probably be arguing Hammond vs Pro Fit

http://www.bailii.org/ew/cases/EWHC/Ch/2007/1998.html

They may have threatened you with BR because you've threatened them with a substantial counterclaim if they were to pursue you through the county court which would be the appropriate legal route.

A SD is not a court document; anyone can simply download the template off the internet and serve it having filled in the relevant details. You can't counterclaim a statutory demand, you can only make a counterclaim when you have received a claim.

[Norbert]

Re: Statutory Demand threat

Norbert, planB is the same person that spanked Santander & changed millions of customers status' (if they know about her success) - and tbh your ridiculous counterclaim will be scoffed; chewed and spat back at you by a judge. Under what case law or precedent are you citing wrongdoing?

Thanks for your reply - even if you do think my counterclaim is ridiculous! I am familiar with the case you mention in your reply. My counterclaim or threat of it is a side show issue and not the main event as far as I am concerned.

My case is that the Co-op are relying on the fact they have a legally executed agreement under CCA74. All they can provide is a copy of an alleged application form dating from 1993 with no PTs on the form whatsoever. Their contention is that "they would have been provided" - not that they were, and that they can prove it with evidence; just that they "would have."

My view is that does not satisfy the admitiedly stringent interpretation of CCA 72 s127(3).

I also contend that their decision not to keep records prior to 2005 of a "live" CCA regulated credit agreement (dating from 1993) is a commercial decision on their part. If they want to legally enforce a credit agreement, then they should be able to produce all the relevant documents pertaining to that agreement.

My case will be that the agreement was NOT properly legally executed and that all I was ever provided with was a copy of the original credit card appalication form - nothing else.

The counterclaim angle is that if the agreement was NOT properly executed and therefore NOT legal then they were never entitled to charges fees and interest under it. However, as I say, that's a side-show!

[Norbert]

Re: Statutory Demand threat

If they do serve you with a SD then you need to post up on here so we can help you get it set-aside on the basis that there are "triable" issues which should be dealt with in the county court not the BR court.

Thanks PlanB - having done my reserach, that was the view I had formed, so I'm glad you've confirmed my thinking.

My view is that the other reason they are avoiding a threat of county court is that the legal issue(as per the relevant case law) has already been decided in the House of Lords, so they would be unlikely to get much joy unless there were new facts to present, which looking at the relevant case law, there aren't.

I think the threat of a SD is a "bullying" tactic becuase it mentions the words "bankruptcy" and that would scare most people I think!

[PlanB]

Re: Statutory Demand threat

All they can provide is a copy of an alleged application form dating from 1993 with no PTs on the form whatsoever. Their contention is that "they would have been provided" - not that they were, and that they can prove it with evidence; just that they "would have."

My view is that does not satisfy the admitiedly stringent interpretation of CCA 72 s127(3).

That was the view taken by DJ Henrietta Manners in Paragraph 11 of my Santander v Mayhew judgement:

http://www.bailii.org/ew/cases/Misc/2012/14.html

[Never-In-Doubt]

Re: Statutory Demand threat

Thanks for your reply - even if you do think my counterclaim is ridiculous! I am familiar with the case you mention in your reply. My counterclaim or threat of it is a side show issue and not the main event as far as I am concerned.

Sorry, I didn't mean it to sound rude - but it is well, lets say, not going to hold much weight in court.

My case is that the Co-op are relying on the fact they have a legally executed agreement under CCA74. All they can provide is a copy of an alleged application form dating from 1993 with no PTs on the form whatsoever. Their contention is that "they would have been provided" - not that they were, and that they can prove it with evidence; just that they "would have."

Ok, fair point - now to this a judge will look you in the eye and ask a simple question; did you ever receive the terms? Lie and get found out and you're probably going to prison (contempt of court etc) tell the truth or say you can't remember and the judge will (always) take the side of the bank because generally speaking terms would have been issued. So the real question to you right now is were you issued the original terms, yes or no? If no you may have a defence, but be careful as the bank can at any point produce a recon and unless you argue you'd never seen the terms provided before then the judge will assume you were served a set at inception (most people are to be honest).

My view is that does not satisfy the admitiedly stringent interpretation of CCA 72 s127(3).

It does if they did ever issue you terms, that on the stand when asked you would answer "Yes, I did receive terms at outset". But as stated above if you genuinely never and there is no chance the bank can prove otherwise then you might have a small defence.

I also contend that their decision not to keep records prior to 2005 of a "live" CCA regulated credit agreement (dating from 1993) is a commercial decision on their part. If they want to legally enforce a credit agreement, then they should be able to produce all the relevant documents pertaining to that agreement.

Nope, Carey put paid to that - they can provide a recon of both the agreement and the terms, should they so decide - even as late as on the day of trial...!!

My case will be that the agreement was NOT properly legally executed and that all I was ever provided with was a copy of the original credit card appalication form - nothing else.

Is that the truth ie you never seen the original terms? Or are you saying that because you believe they have archived their historical papers and cannot prove it? Be careful here, tell the truth so we can help - don't blag it / lie or think - as you may get found out...

The counterclaim angle is that if the agreement was NOT properly executed and therefore NOT legal then they were never entitled to charges fees and interest under it. However, as I say, that's a side-show!

Where are you learning things from

See my comments in red..... I'd presume I know a little about the CCA and it's associated Acts but take what I say as you wish - just trying to help.

[Never-In-Doubt]

Re: Statutory Demand threat

That was the view taken by DJ Henrietta Manners in Paragraph 11 of my Santander v Mayhew judgement:

http://www.bailii.org/ew/cases/Misc/2012/14.html

Yours is slightly different to be fair though.....

[Norbert]

Re: Statutory Demand threat

Thanks - your point are all noted - it's useful for someone to cast their eye over things.

What has been provided to me by the bank is a copy of the original credit card agreement dating from 1993. That was all that was ever completed - a two page form. I can upload a copy if it helps. There were no other pages and no other documents that went with it.

The form completed didn't have then and doesn't have now:-

The credit limit (on it at the time it was completed and signed)
The interest rate charged
The frequency and timing of repayments
Dates of repayments

This seems to me to be a clear breach S127(3) of CCA74 - and as a pre 2006 agreement, the PTs must be in the document and s127(3) is applicable.

To quote the summary elsewhere on this site:-

"An agreement that is not properly executed and was signed before 2006 is not enforceable unless it has the debtor's signature and the prescribed terms in the same document."

[Never-In-Doubt]

Re: Statutory Demand threat

Ok well if you're saying it doesn't contain the prescribed terms you will of course have defensible points. Do you have a copy of the agreement / terms as they sent to you? If so could you please email me an unedited copy.... Let me see and then you'll know one way or another.

I do hope you're right. That'd be a deal breaker if there's no interest rates showing. The credit limit itself (in £££'s) isn't necessary if it says "we'll notify you if your limit blah blah"...