Capquest *** WON *** -stat Demand Set Aside This Morning!

[gshniben]

Hi Guys -

 

firstly an awesome site. So so helpful!

 

I received a stat request from Capquest dated Jan 14th. I was away untilthe 21, but have now sent them by recorded delivery a request for a copy of my CCA.

 

The account was with Egg and was defaulted on in November 2002, with a payment of £20 being made they tell me in June 2003. Is is statute barred?

 

I really need help filling in 6.4 and 6.5, which need to be in court by this Friday, Jan 30th. Can I file to have it set aside even though Capquest will only have received the request for the CCA tomorrow, Jan 27th?

 

Where can I downloa d or copy templates of the details required for 6.4 and 6.5 please?

Lastly on the stat demand, there is no date for the assignment of the debt from capquest to Egg. Is this relevent?

 

thanks in advance for all your help!

Edited January 26, 2009 by gshniben
typos

[42man]

Welcome to the CAG forums....firstly have you had a read through here.

 

If you did indeed make a payment towards the debt in the last 6 years then it won't be statute barred until June of this year

 

If it states in the demand that the debt refers to an agreement, then you can by all means state that they have provided no agreement, no default notice, no notice of assignment and no statements for the duration of the agreement (penalty charges)....

 

Do have a look through here, you should find some useful information...

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/

[42man]

You can find the forms here in electronic form - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

[gshniben]

thanks 42man.. much appreciated! Can I file for a set aside even though the time for them to send me the CCA will not have passed?

[gshniben]

42 man.. sorry to be a pain. Im trying to fill out this 6.5 form... but cant find a decent template as I have only sent the request or the CCA today.. can you please direct me to one please = thanks

[42man]

6.5 is the affadavit, there is a good one here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164580-capquest-sd-please-help.html?highlight=chezza

[gshniben]

thanks 42 man. Sorry if I am being a nuptie but i think mine needs to be slightly different. I have sent the CCA request off today so technically they have 12 days to get it to me yet my form 6.5 needs to be in by friday so how do I word it?

 

also, their is no assignment date on the SD for when Egg transferred it to Capquest. Also I tried to call ad speak to the person named on the SD and they told me she wasnt available.

 

Can you advise given the above on how to fill in the 6.5?

 

Thanks

[42man]

For the CCA request you could write something along the lines of.

 

Under the Consumer Credit Act 1974

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

a request was made for a copy of the agreement, up to this date, the alleged claimant has not supplied a copy of the agreement (you can mention this is it is stated on the stat demand) as stated in the demand (delete as appropriate) and are in default of my request.

[42man]

I would also state that

 

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.

 

Then list the times and dates you have tried to call them.....

 

What Capquest tend to do is state in any witness statement, that they have seen your defence on an internet website - which in all honesty has NO implications or bearing whatsoever on a judges decision....

[42man]

What does it say on the demand exactly ?

[gshniben]

it says the creditor claims that you owe the sum of £xxxxx full particulars of which are set out on page 2, and that it is payable immediaty and , o the extent of the sum is demanded, is unsecured.

 

signed by someone and dated saying she is head of litigation.

 

on page 2 it has particulars of debt, saying debt relates to unpaid balance of sumes due under cedit agreement dated (no date is inserted) between xxxxx and egg banking plc in respect of acccount number xxxxxxxxxxx the agreement terminated upon the failure of xxxxx to comply with the terms of the agreement and /or stat notice of default served by egg banking.

 

the rightsand duties of egg banking plc passed to the creditor pursuant to an agreemen dated - (no date given)

 

the toal amount due is xxxxxxx which includes interest of xxxxx which has accrued since the assignment of the date.

 

part c says original creditor is egg an assignes cappquest with no dates of assigment

 

cheers for all your help

[gshniben]

sorry for the typos.... was in a hurry! I can spell and copy!

[gshniben]

as there is no assigment date, does this help?

[42man]

Be warned Capquest are reading this thread (as they do with others)....

[gshniben]

42 man - I have sent you a PM following on from your last post -PLEASE can you check it out and get back to me? many thanks! AMAZING SITE!

[gshniben]

Hi 42 man... did you manage to take a peek at my PM to you? there are several issues I am unsure of with regards to how to word my 6.5 form. I would very much appreciate your help.

 

thanks

[42man]

On your affadavit I would write the following...

 

The alleged debt is totally disputed

 

The alleged creditor states that the sum is due under an agreement - no agreement has been attached to this demand.

 

A copy of the agreement has been made under the Consumer Credit Act 1974 under section 77 (1) 78 (1) to this date no agreement has been supplied and they will fall into default of that request as of (date)

I quote from the Consumer Credit Act 1974

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit

 

78.

Duty to give information to debtor under running-account credit agreement.

— (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 [F1 £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

 

©

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.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(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

©

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)

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.”

The alleged creditor states that the account was defaulted by 'Egg'

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 demand.
  

• 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 case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974.
  
• 
  
• No proof of service of the default notice has been supplied
  

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 alleged Claimant as alleged in the demand. It is averred that the Claimant has failed to serve a 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. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, 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 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

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.

On the following dates I have attempted to speak to the person named on the demand and on each occasion, I have not been allowed to speak to the person named.

(list dates and times)

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

Then r 6.15 says:

(1) Service of the petition should be proved by affidavit.

(2) The affidavit shall have exhibited to it -

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it should be filed in court immediately after service.

'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. The rules provide in terms that the petition must be supported by an affidavit of service showing how the petition was served, and express reference is made to substituted service and the way in which that then is to be proved, which involves the affidavit of service having with it a sealed copy of the order.' - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

I believe this demand is a frivolous and unlawful attempt to frighten me into paying on an alleged debt to which they have provided no agreement with the prescribed terms, no default notice in the prescribed format or accompanying proof of service, no statements for the duration of the alleged agreement (it not being uncommon for debts to be made up entirely of excessive charges) and no assignment under any law of property.

I gracefully request that the judge dissmisses the demand on the above information and I request in light of the above the judge makes an order to pay my costs.

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

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

[42man]

You'll need to tidy it up, and number the points correctly......i'm sure you'll be doing your own research into what is being said here....you'll need to take this (6.5 - affadavit) along with form 6.4, (and your CCA request and rec delivery slip - get them copied) and attach them to the affadavit as an accompanying document.

 

Once you have taken them along to your nearest court (make sure they handle bankruptcies/insolvencies) ask the court staff to swear in your documents.....you should get a hearing date in the next 4-6 weeks...

 

As for your costs you'll need to submit them 24 hours before the hearing or at least send them to the court so they arrive 24 hours before....

 

Head the cost sheet LITIGANT IN PERSON COSTS

 

You can claim @ £9.25 per hour for your research into the Consumer Credit Act / Insolvency Law

40p per mile

Postage

Parking

You can always ask the judge for the time you have taken off work too...

[gshniben]

Hi

 

i received a reply from them stating that they received my request and my account was on hold for xx number of days whilst they try and get the info.

 

I filed my SD set aside request earlier this week and Capquest now have 5 days left to send me the signed agreement. I am presuming I will hear re a court date in the next few days, so can anyone enlighten me how the next stages will unfold?

 

thanks

[Shawn0109]

Well all you can do is sit back and wait to get a reply from the court as to when your hearing will be and if capquest dont respond to your CCA request then you can if you so wish to send off the debt in dispute letter, i take it you have kept all copies of letters sent and recorded delivery slips?

[gshniben]

Hi Guys

 

I received this morning a photocopy of an Egg Card Agreement between myself and (oviously!) Egg, sent to me by Capquest within the 12+2 days.

 

What they have sent me is titled an "Egg Card Agreement for XXXX"

 

It says it is a Credit Agreement regulated by the CCA 1974.

 

It has my name and address on it and it says that with regards to my Egg Card "we will let you know from time to time the Approved Limit we have set, and if different, the individual limit you have set for the account".

 

It then mentions interest and charges and repayments and then on the second page it is headed, "Important you should read your rights" and "Loss and Misuse of Card".

 

It then says the agreement will only be binding on them when they received my signature and they have done their final checks.

 

It then has my signature and a date in my writing and then signed on behalf of Egg (their signature is dated 2 days before mine). The pages are in black and white print on top of some green printing at the top and bottom which is blurred, like it has been printed on top of something.

 

that is ALL i have received. JUST these 2 pages. There is no attached "small print" etc with it or specific mention of a credit limit.

 

I have a hearing for a set aside in approx 2 weeks. They have NOT sent me proof of assignment of debt either or any schedule of charges and fees etc.

 

Please can the experts on here let me know my next steps and whether I still have a case for a set aside, bearing in mind what they have sent me.

 

what are my next steps, odds, chances etc.

 

thanks

[gshniben]

upon reading what I have been sent again, the first page as the egg logo appears twice on top of each other in the top right hand corner, and the second page just has the egg logo once, so to my mind it cant be the sme document..

 

it does NOT specify the precise credit limit.. is that a help? It DOES talk about interest and % and repayments on page one but page 2 simply hasmy rights, loss or misuse of card, and my signature and of theirs.

 

the bottom of bpth pages are also not consistent in terms of egg address etc.

 

it doesnt seem obvious the two pages follow on from each other, but I could be wrong.

 

thanks again for any help...

[MARTIN3030]

Hi have added Egg to your thread title for others to help.

 

Have a read through this thread-it should answer some questions.

 

 

http://www.consumeractiongroup.co.uk/forum/egg/177463-response-our-egg-cca.html

[gshniben]

many thanks martin3030. I feel better now! To re-iterate it says "Approved Limit" - nowhere does it say credit limit etc.

 

Additionally the heading is Egg Card Agreement - does that make a difference?

 

has anyone actually won in court challenging a document like this?

 

Lastly, they have not sent me any proof of assignment - is that a factor too?

 

thanks

[tomtom013]

Try scanning and posting the agreement for a moderator to look at. This might help your case.