Thread: cap quest stat demand - help needed!***WON + COSTS***

Have a read of this thread - http://www.consumeractiongroup.co.uk...nd-threat.html

You need to dispute the debt substantially.....

so for example....

The alleged creditor has not supplied a signed/dated/valid agreement that contains the prescribed terms as per Consumer Credit Act 1974

The alleged creditor has failed to supply statements for the duration of the agreement, it not being uncommon that some debts are made up entirely of excessive and unlawful penalty charges.

The alleged creditor has failed to provde a valid default notice in the prescribed format as laid down in the Consumer Credit Act.

The alleged creditor has failed to provide any notice/s of assignment.

And if you need the relevant case laws have a look here - http://www.consumeractiongroup.co.uk...eved-help.html

Hi can someone have a look at what i'm intending to put in the affadavit please? only got a day or so to get it in!


ty,


Neil





I dispute the alleged debt. The alleged creditor has not supplied a valid agreement that contains the prescribed terms as per Consumer Credit Act 1974

Under section 78 (1) of the Consumer Credit Act, A formal written request for any true copies of signed consumer credit agreements was sent to CapQuest. via recorded delivery on the 07/04/09 (see attached document 1) to date they have not sent any copies of any Consumer Credit Agreements. A previous request was sent to Capital One bank 29/11/07 and no true copy of a signed agreement was provided to me.

I believe there are no properly executed signed Consumer Credit Agreements, If they had been able to supply these agreements then they would have done already to avoid going into default under section 78 (1) of the Consumer Credit Act

SECTION 78 (1) CONSUMER CREDIT ACT 1974

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

The Consumer Credit Act in section 78(6) States that

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement



It must also be noted that the agreement must contain the prescribed terms.

Consumer Credit Act

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))
Citation
1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.
Interpretation
2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.
Commencement
3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.
(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.
Transitional Provisions
4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)
5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—
a)
sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;
(b)
section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and
(c)
section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,
in relation to agreements made before 6 April 2007)

I would also pick out a few from here too...

REFERENCE TO CASE LAW

• As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
  ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29
” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the demand was issued.


DEFAULT NOTICE


The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants demand falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

The Defendant denies that he is liable to the Claimant as alleged in the demand. It is averred that the alleged ORIGINAL CREDITOR has served a valid notice of assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable.

W.F.Harrison and Co Ltd v Burke [1956].
The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

Law Of Property - s136 Legal assignments of things in action
(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-
(a) the legal right to such debt or thing in action;
(b) all legal and other remedies for the same; and
(c) the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-
(a) that the assignment is disputed by the assignor or any person claiming under him; or
(b) of any other opposing or conflicting claims to such debt or thing in action;
he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925


Rights and Duties
CCA74 s189(1)
“ creditor “ means the person providing credit under a consumer credit agreement or
the person to whom his rights and duties under the agreement have passed by
assignment or operation of law, and in relation to a prospective consumer credit
agreement, includes the prospective creditor;

CCA74 189 (1)
“ debtor “ means the individual receiving credit under a consumer credit agreement or
the person to whom his rights and duties under the agreement have passed by
assignment or operation of law, and in relation to a prospective consumer credit
agreement includes the prospective debtor


Abuse of Process

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.
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

I have on 3 separate occasions attempted to speak to the named contact but on each occasion I have been denied the chance to speak to that person.

(log the times and dates here)

I refer to:

Judge Boggis QC - RE AWAN - [2000] BPIR 241

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

I also request the judge order the alleged claimant to remove any adverse data on my credit files.

I also request the judge consider making an indemnity award in light of the upset and inconvenience that this has caused me and my family.

I also make the request that the judge orders a bankruptcy restraining order against the alleged creditor

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt