Difference between revisions of "Statutory Demands"

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(Legal Loophole in a Statutory Demand)
 
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'''[http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf Form 6.5 "Affidavit supporting form 6.4" (pdf)]'''
 
'''[http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf Form 6.5 "Affidavit supporting form 6.4" (pdf)]'''
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====Filling in Set Aside Forms 6.4 & 6.5====
  
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This is how to fill in the application forms to set aside a Statutory Demand.
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(Go Debt has been used as an example)
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[[Image:Set Aside.jpg]]
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[[Image:Set aside 2.jpg]]
 
== Related Pages ==
 
== Related Pages ==
 
[[Creditors and DCAs]]
 
[[Creditors and DCAs]]

Latest revision as of 15:36, 11 June 2010

Debt Collection Agencies & Statutory Demands

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 pot, 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)


The Statutory Demand

When properly served, and it has to be formally served this is a legal notice from the creditor to the debtor giving them 21 days to settle the debt otherwise a bankruptcy petition may be issued

View a statutory demand as a warning shot. Generally the courts have frowned on Statutory Demands as a method of debt collection. In many case with consumer as opposed to commercial debt the creditor does not persue the bankruptcy route BUT if the Demand is served on you personaly, that is by a process server as opposed to by post the take it very seriously indeed.

Who can Issue a statutory demand?

Anyone can - it is not a document that is issued at Court, generally they are held on Debt Collectors computers and just filled in with your details. It is not even a requirement to serve one before a bankruptcy petiton is issued, but it does make the creditors life easier if one is served.


Legal Loophole in a Statutory Demand

A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

6.2.— Information to be given in statutory demand

(1) The statutory demand must include an explanation to the debtor of the following matters—

(a) the purpose of the demand, and the fact that, if the debtor does not comply with the demand, bankruptcy proceedings may be commenced against him;

(b) the time within which the demand must be complied with, if that consequence is to be avoided;

(c) the methods of compliance which are open to the debtor; and

(d) his right to apply to the court for the statutory demand to be set aside.

(2) The demand must specify one or more named individuals with whom the debtor may, if he wishes, enter into communication with a view to securing or compounding for the debt to the satisfaction of the creditor or (as the case may be) establishing to the creditor's satisfaction that there is a reasonable prospect that the debt will be paid when it falls due.

In the case of any individual so named in the demand, his address and telephone number (if any) must be given.


This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid. Be aware that named people on accompanying letters are not part of the Statutory Demand - only those on the Demand itself are valid.

Important - make notes of dates/times you try to call the named person on the statutory demand, togerther with the name of the person that you spoke to and a note of what was said.

The 'First Credit' Scenario

First Credit (debt collection agency) have (as at December 2007) been issuing statutory demands where it has not been possible to contact the name given on the demand because the call centre will not put you through. This has the effect of nullyfying their ability to follow through their bankruptcy threat.

Why do this?

Most people panic when the word bankruptcy is mentioned and a statutory demand usually appears all 'official' as from a court so it makes you act.


When to worry about a Statutory Demand

Providing it has been served correctly you must treat it as a matter of urgency. Especially if the person/business behind the demand:

  • Is willing and able to take you to court to recover their monies
  • Is upset with you and the threat is more emotionally based than financial
  • Knows that the attempt to make you bankrupt will affect your professional reputation (all bankruptcy hearings are public knowledge, regardless of outcome)


How to prevent a statutory demand escalating to a bankruptcy petition

  • Reduce the debt owed to the creditor to below £750 (The legal minimum amount owed that can result in a bankruptcy order)
  • Apply for the demand to be set aside but only if you have proper grounds
  • Make an offer to settle or compound the debt/s to the creditors satisfaction.(For example offering some security).


How to Set Aside a statutory demand

Note:This must be done within 18 days of the demand being served

  • Dispute the amount owed (proof is required). This will only apply if the dispute is genuine and the value of the dispute reduces the undisputed sum to below £750
  • The Creditor serving the demand holds security/assets of yours that are equal to or worth more than the claim
  • The amount owed is below £750
  • The person sreved the statutory demand owes you money amounting to the same value or more than they are claiming from you also - this is called a counterclaim or set off and there must be a Triable issue between you
  • The demand is served in error
  • The creditor failed to comply with the rules - such as the delivery of the statutory demand. Though in this case the court will usually allow the demand to stand unless there has been any real prejudice or injustice.

Forms to set aside a statutory demand can be obtained below directly from the insolvency website

Form 6.4 "Set aside a statutory Demand" (pdf)

Form 6.5 "Affidavit supporting form 6.4" (pdf)

Filling in Set Aside Forms 6.4 & 6.5

This is how to fill in the application forms to set aside a Statutory Demand.

(Go Debt has been used as an example)

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Related Pages

Creditors and DCAs

Debt: Glossary of Terms

Dealing With Debt: Common Mistakes