hi, my house was reposesd mid 1991,i have been called to court over a shortfall claim(it's now over 12 years) they are trying to do a bankruptcy petition,regarding a statutory demand that was suposdly served in person two years ago. I was at work at the time and have made a witness statement to the court and provided evidence(MY WORK ROTA AND A LETTER FROM MY PERSONELL DEPT),also when they serve you should they not enforce it in the first four months as is the norm i belive??how can they claim to serve you in person when i was at work ,and then try to enforce it nearly two years later?do they do this stuff a lot??i'm talking about curtis solc.

-- john smith (felix.70@virgin.net), September 15, 2003

Answers

Don't know the answer - hope there's someone out there who does. However, very best of luck & hope you win!

-- john smith (another one) (john_8978@hotmail.com), September 17, 2003.

John,

Here is some info I've obtained from a solicitor for you, hope you find it useful. My only comment would be, re(1) below, that you ought to check that you or any possible partner didn't acknowledge the debt and restart the 12 year limitation period (LA 1980).....

Here it looks as if there may be the basis for having the petition dismissed for two reasons. (1) the basic LA '80 point - you cannot be made bankrupt for a debt that was statute barred at the time the petition was issued. I can't remember the authority off the top of my head but this is definitely the case.

(2) on the basis that the SD was not properly served.

I have looked up some stuff on service of SDs.

Section 268 I(1)(a) Insolvency Act 1986 (IA): this says that a statutory demand must be 'served' (not much help but it does mean that if the SD is not properly served, any bankrupty petition bases on it can be 'defended').

Practice Direction Insolvency Proceedings, para 11 'Substituted Service':

11.1: This states that "the creditor is under an obligation to do all that is reasonable to bring the statutory demand to the debtor's attention and, if practicable, to cause personal service to be effected. Where it is not possible to effect prompt personal service, service may be effected by by other means such as first class post or by insertion into a letter box".

It seems apparent that Curtis have not complied with this. Rule 6.3 (1) & (2) Insolvency Rules (IR) says the same thing. The note to para (2) refers to a case which looked at what was meant by 'to do all that is reasonable'. This is for the judge to decide on the facts. In the case the creditor made nine unsuccessful attempts to effect personal service at the debtor's home but had not visited his place of work, but it's not clear whether this passed or failed the test of having 'to do all that is reasonable' (need to see the law report which I should have at work). There is another case mentioned but I don't have access to the relevant reports (Re A Company (No 008790 of 1990 [1992] B.P.I.R 11)).

Rule 6.11 contains more stuff about the creditor proving that the SD has been served Among other things, it says that when the SD was served personally, an affidavit has to be filed by the who effected service. This is presumably where John got his info.

So, in summary, John needs to oppose the petition on the basis that:

1. the debt was statute barred at the date the petition was issued

2. the SD was not served and that where this is the case, the bankruptcy petition based on it must be dismissed

John has done the right thing by sending his witness statement to court. It's not clear if he has formally opposed the petition. Under 6.21 (a) &(b) this has to be done by giving notice of the grounds for the objections to the making of a bankruptcy order on form 6.19 which must be filed at the court and sent to the creditor not less than 7 days before the date of the (bankruptcy) hearing. This may result in the hearing being adjourned. There is probably a fee to pay.

I hope that's enough to be going on with.

-- M Amos (idgroms@hotmail.com), September 21, 2003.

John,

The solicitor has come back with further info on the above....

1. The bankruptcy petition should have been served within 4 months of the SD. If it is not, there is no specific time bar but creditor must explain the reasons for the delay.

2. Even if the SD was not served correctly, it will be OK if it has actually come to the debtor's attention. Did this happen or was the first that was known about it the arrival of the petition?

Even if the SD did come to the debtor's attention, I would still wish to pursue the issue of the server apparently giving incorrect information on an affidavit. Mark.

-- M Amos (idgroms@hotmail.com), September 23, 2003.