Capquest County Court Claim

[pblackie]

I've just received a County Court Claim issued by Capquest. It is for an Egg loan I had a few years back and stopped paying when I was out of work. I've not received anything from Egg saying they had sold the debt nor have I received anything from Capquest saying they intend to take court action. I thought they had to give me notice that they intend to start proceedings? I will be sending the Acknowledgement of service back tomorrow and sending Capquest a CPR letter, any ideas on what else I should do?

[citizenB]

Bump

[Docman]

Can you post up a scanned copy of the claim minus your personal details?

[Goldlady]

How many years is 'a few'? Is there a chance this is statute barred - no acknowledgement of the debt or payment for six years.

 

I have a couple of ongoing cases where no letter before action was sent - in fact the DCA in question issued the court claims as soon as the debt was assigned to them. I drew their attention to this - one of the claims was withdrawn, the other about to be (I hope).

 

It is a breach of the CPR but I am not sure how serious this is in the Court's eyes once you are in front of a judge.

[pblackie]

Hi Sorry for the delay in posting the claim up, It's been a bit hectic at work.

Capquest Claim.pdf

[Goldlady]

Bumping your thread - do you know when you last acknowledged the debt or paid anything?

[Docman]

Well the POC don't say much but can be defended. Did you acknowledge service and send the CPR 18 letter to Crapwest?

[pblackie]

I Have acknowledged service and the CPR letter is going out today. In reply to a previous question last contact was within the last 6 years so it's not statute barred.

[pblackie]

Nothing from Capquest in response to my CPR letter, I submitted the following defence yesterday:

 

 

 

Defence

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.
   
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
   
3. The claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;


1. The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.
   
2. A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.
   
3. A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

[*]Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

[*]Further to the case, on 04/04/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a list of charges applied to the account.

[*]To Date the claimant has ignored my request under the CPR, which was received and signed for by the claimant on 10/04/2008 and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested

[*]The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to assess if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

 

[*]The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127(3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

[*]Notwithstanding points 7 and 8, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

[*]The claimant is therefore put to strict proof that such a compliant document exists

[*]It is neither admitted or 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 point 11, 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)

[*]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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

[*]Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

[*]In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

[*]Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

17. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced before 6th April 2007 the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

Statement of Truth

 

I, believe the above statement to be true and factual



1. Number of repayments;
   
2. Amount of repayments;
   
3. Frequency and timing of repayments;
   
4. Dates of repayments;
   
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

[Goldlady]

And now we wait......

 

Best of luck.

[itsamomentintime]

And now we wait......

 

Best of luck.

 

i concur

[Docman]

Looks good to me.

 

The more I think about cases like this commenced through Northamton, the more I am of the opinion that some DCAs are abusing the court system by issuing claims they know they can't produce documentation for.

 

Since they don't have to file CCA with claims on through the internet until challenged in a local court, they must take a chance that debtors will not respond in time and then obtain judgement by default.

[UK26]

how many companies do Capquest own?

 

Good luck with this case. When does it goto court?

[pblackie]

Spoke to the court yesterday, Capquest failed to respond to my defence so the case has been stayed now to get the default removed.

 

Anything I can do to make sure this doesn't come back to haunt me?

[Docman]

Can you not apply to have the claim struck out, rather than just stayed?

[pblackie]

I am planning on sending the folowing to the Court Manager:

 

Dear Sir/Madam,

Your help desk has informed me that my case has been stayed due to the fact that the Claimant has failed to contact yourselves within 28 days after receiving my defence.

On the 4th of April 2008 I requested under the Civil Procedure rules that the claimant furnish me with certain information (see attached letter) which would prove that they had the legal right to undertake Court action against myself with respect to the alleged debt as well as to permit me to submit an appropriate defence, to this date I have received nothing from the claimant.

In light of the fact that the claimant has failed to contact yourselves within the prescribed time period and has failed to provide me with the Statutory required proof that they can undertake Court action against me with regards to the alleged debt I respectfully request that the Court Strikes the Claim out.

 

Can anyone suggect any amendments?

[pblackie]

Sent a letter to the court asking them to strike the case out, unfortunatley when I got home their was an allocation questionaire waiting for me as Crapquest had alredy asked for the stay to be removed

 

Can anyone help with the AQ please?

[42man]

Hey pb....i'm not an expert on these but hopefully this will help you...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

 

Send me a PM if you are stuck...

[pblackie]

Just received the attached allocation notice, doesn't look like the Judge believes Capquest have documantation should be interesting to see if they comply!

allocation notice.pdf

[42man]

Just wanted to say great work pb !! stick to your guns and don't forget to claim your costs !!

[42man]

with 8 days left to reply....they will NOT be able to produce it all !!!! - keep us posted...

[pblackie]

I have received the attached as their reply to my defence. Two things strike me as not right - 1. there is no default notice included, 2. if the account was sold capquest in december 2006 why does the statement on egg letter headed paper show entries up until may 2008?

 

Any advice anyone? do I need to submit an amended defence if so any pointers?

Capquest reply to defence.pdf

[pblackie]

Bump

[citizenB]

Bump

 

Bump

[42man]

No defaults ? no letter before action ?...and there are a few excessive charges there also....