yeah it does seem a bit backhanded..first they are saying you have no case to have is set aside and yet in their other letter they say they are withdrawing the stat demand for lack of paperwork.....firstly you will not have to speak to the dj...or in fact very little...they are their to put you at your ease they know you are not a legal person and will help in 99% of cases...if they are so sure of their paperwork why not put if before the courts instead of issuing these spurious demands...they have no intention of making you bankrupt as it would cost them in excess of a thousand pounds to do so and they would lose control as it would be turned over to the official receiver who would decide what they get...this is purely psychological pressure designed to intimidate..they have no right to add to the debt UNLESS it is in the original documentation..which of course they cannot show....you should also have been sent yearly a statement of account....this company excuse my french is bloody beyond...

hi debt - thanks for that - they have got a copy of the original credit agreement with the T & C's - would it have to be in their about adding interest ??

yep

here are the loan T & C's - there are two parts that jump out to me that i am unsure of -

where it says in 1.1 we, us and our means the lender named on the front page of the loan agreement and its successors - does this just relate to if the lender changes theie names or ownership - like being bought by LLoyds or does it relate to them selling the debt to another company.

and 12.7 - The Contracts ( Rights of Third Parties ) act 1999 will not apply to these conditions. This is so no one other than you and us will get any rights to these conditions. - Does this mean Capquest are screwed and can not apply interest as they have no rights to ?

loan t&c's.pdf

I agree, they are abusing the insolvancy service in order to aid debt collection. I really dont understand how on one hand they are nullifying the SD, are not intending to turn up at court but at the same time have said that you have no case to have the SD set aside?

I think the judge will be confused also.

In my opinion the things you need to keep in mind and stipulate to the DJ are:

1. You phoned Mr Barry Davies on the number given on the SD on five occasions with no success. It is only reasonable to expect you to phone the number you have been provided on correspondance from them. Although they dispute the amount of times you contacted them, the fact that you tried and were unsuccessful because they provided a number where he wouldnt be available should be reason enough for the Judge to view your case favourably.

2. You have to have the SD set aside because you are totally confused as to their intention, they say you have no case to have the SD set aside but proport not to be pursuing it (because they dont have the required documentation).

3. They issued the SD without having any intention of pursuing it as they admit they do not have the required documentation therefore proof that they were using the insolvancy service to aid debt collection.

4. You dispute the amounts of the alleged debt and this also puts it in dispute and a SD should be set aside if the alleged debt is in dispute.

5. The onus is on them to prove the payment made in order to adjust the SB status of the claim, not the other way round and if it is obvious that the amount paid in 2007 was from the closure of the account rather than an tacit payment from you then they lose that argument.

I hope this is of some help.

thank you Monx - so they should have been in possession of all documents to be able to issue the SD -

Using the Insolvency service to aid debt collection is not allowed then ?

Any views on the T & C's of the original loan agreement as to weather they can add interest or not ?

In order for them to issue a SD they are supposed to exhaust all other avenues of contacting you and arranging a payment, in order to do that the alleged debt has to be enforceable, how can they know if the debt is enforceable if they do not have the orginal CCA.

As the respondant, when swearing in your affidavit, your reasons for having the SD set aside are the method service of the SD and the non production of your CCA, how can you be sure that the debt is yours without the CCA, that they have the legal right to chase the debt without a notice of assignment and the fact that the amounts differ from an alleged debt you may owe, you dispute it in total .... you do not recognise it.

Further to your arguement about the service of the SD, this is direct from the 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.
  

That last bullet point does seem to be rather relevant in your case after seing their defense statement.

ok tnx, - i shall compile a list to refer to when infront of the judge - also i have just noticed while reading another thread on the forum that in the original Stat Demand the court that they list as the one i need to go to, to apply for the set aside is incorrect - i went there and they sent me to a different court - where the hearing is tomorrow - is this something else that i can have the SD set aside on that it was issued with wrong information on it ?

Your hearing should be at the same court your swore your affidavit in....im confused, have you had another SD or did that one have a different court address on it?

As requested - here is a summary of events.

Got SD dated 3rd May - recieved 6th May

Sent Capquest letter requesting documents - along with my postal order for £1 ( copy uploaded on post 325 )

Tried calling Barry Davis on the number listed on SD - Not his office

letter from capquest saying docs had been requested from originator and that I can consider the SD a nullity ( copy uploaded on post 325 )

waited the 14 days for docs - nothing arrived

Got letter from capquest saying that bary davis has tried to call and they give me another number - by now set asside docs ready to go to court with so dont bother calling him now.

Go to court listed on SD to swear affadavit and lodge set aside app - they tell me its the wrong court and i have to go to another court 10 miles away -

Papers lodged with court within the 18 day alloted timespan.

27th May recieve letter directly from Halifax (OC) with copy of Credit agreement and statement of account - No deed of assignment and no copy of default

beginning of july get a court date - 26th August

5th July get confirmation from Capquest they have set aside app from court and they harp on that mr davies tried to call me 10 days after i called him 5 times and that i can contact him on another number to resolve this.

6th August letter from capquest saying they are still endeavouring to get the required information from Halifax regarding my query and that they are discussing my case personally with the halifax.

Today - 25th Aug - get registered letter with capquest defence and exhibits for the case - they are not attending in a bid to keep costs down.

All relevant letters uploaded on post 325

Your hearing should be at the same court your swore your affidavit in....im confused, have you had another SD or did that one have a different court address on it?

I went to the court shown on the SD for having the SD set aside - they tell me its the wrong court - i swear affadavit there and take it over to the other court the following day

Ok, no longer confused. Some courts dont deal with Bankruptcy petitions and the original court has referred you to one that did.

Yes I would show the DJ that the SD was made out for a court that didnt deal with bancruptcy petitions, the DCA in question either didnt know that it didnt or that they had no intention of going through with it. Both conclusions should raise questions as to the validity of the petition and the intention to pursue it.

I would definately state that as the court indicated on the SD was the wrong one, that the number provided for Barry Davies was not where he was available and that the SD was posted with no indication that they had tried to serve it personally prior to posting it should make a very good case for having it set aside let alone the fact that the had no valid documentation to pursue a petition when they served the SD etc etc. I would also state that because of the contradictory information on their defence letter and the wrong information on the SD has left you confused as you cannot reasonably understand the true position between yourself and the creditor.

When and what time is the hearing?

I will have everything crossed for you

You have a good case here and although there are no guarentees, I see no reason why the DJ wouldnt set this SD aside.

Thanks for your help Monx - 11.00 tomorrow - will post how i get on

Good luck! x

IMHO there is also another approach to this.

The original agreement is not properly executed - it does not comply with S60(1) of the CCA.

The errors are minor and it is enforceable, fair enough, BUT ONLY WITH AN ORDER FROM THE COURT i.e. an application for an order under S65 of the Act

Therefore the liabilities under the agreement cannot be enforced with an SD only.

There is also no term for any additional contractual interest to be applied.

They cannot add S69 interest as that is not allowed.

The agreement form looks somewhat 'assembled' maybe nothing I don't know

I Dont feel confident enough to comment on the CCA itself but I did wonder about the adding off interest. Anna does seem to be on the ball and asks if the DCA is allowed to add interest and charges if it doesnt say so in the terms and conditions of the CCA.

It does make my blood boil tho, they send out these SD's in the hope that the recipient will be terrorised into making a payment and then huff and puff when someone challenges them. All that guff about caggers using template letters really makes me angry, surely if it is showing a degree of understanding of the Consumer Credit laws, the Limitation Act etc and that the recipient has studied this in order to mount a defence it is immaterial where it has come from or the level of experience of the people advising as long as it is correct and defends them accurtately. Hell, its not like the knuckle dragging neanderthals in the post room at the DCA offices arent using letter templates!

All that guff about caggers using template letters really makes me angry, surely if it is showing a degree of understanding of the Consumer Credit laws, the Limitation Act etc and that the recipient has studied this in order to mount a defence it is immaterial where it has come from or the level of experience of the people advising as long as it is correct and defends them accurtately. Hell, its not like the knuckle dragging neanderthals in the post room at the DCA offices arent using letter templates!

A similar argument was used in Court once

The Agreement is definitely not properly constructed according to the regs. The Total Charge for Credit is not split into it's constituent parts, the layout is in the wrong order, the minimum length of the agreement is not specified and there are another couple of minor issues.

The major issue is that the monthly rate of interest is wrongly quoted!!!

The last one is interesting as the document is not headed as a 'fixed sum' agreement the rate of interest *may* be a prescribed term, which would make the whole thing unenforceable BUT, that is me thinking aloud and it would need a 'look over' and a good discussion with a few others to check it properly.

I do agree that using the SD as an 'ultimate threat' is despicable and hopefully Capquest will get the same treatment from the OFT as others have done in the past.

Everything is crossed for you Jayne ....

MONX you are totally right.

Not only are the DCA's using templates, the courts use templates, and if we were being represented by solicitors they would use templates as well!

As long as you understand the points of law you are putting forward a template is the obvious, and most sensible thing to use.

Any news Anna?

OK here's the news & an account of how it went.

Nightmare getting to the court, stuck in traffic and was 7 mins late - case already heard and judgement made against me with costs awarded to them of £90 - *@!*!!!!

Receptionist brings a guy over who tells me not to worry I can fight the bankrupcy petition if i have grounds - but if i owe the money then he suggested getting in contact with capquest and hammering something out with them, and to contact their solicitors.I tell him that the amount is in dispute and there are numerous other aspects that the SD should have been set aside. He says that the judge wouldn't have been interested in the little details and arguments that have been found on the internet - only the nuts and bolts of if i owe this money.

Then the receptionist comes over and says the judge will see us and maybe re hear the case

This guy thats been talking to us is only the Capquest solicitor - couldn't believe it - didn't see that one.

Judge goes over the points one by one

1) First off he rubbishes the Barry Davis contact stuff saying that he believes that the law sates that they only need give a name and address for point of contact - don't even have to give a phone number and that is reasonable for him to have tried to contact us when he was available as he could not be expected to be available whenever we phoned. I pointed out that the phone number on the SD was for an office he didn't even work at but the judge wasn't interested in that one.

2) personal service of the SD - judge says that he accepts this could have been used as an arguement if i had never recieved it - but as i had it was a moot point basically and as he wanted to look at the bigger picture of the whole debt - No go on this one.

3) Sending of documents in correct time span - judge says that because they sent the credit agreement & statement of account and a copy of a letter from OC saying that the debt had been sold that they had complied and sent all that is needed by law. I argued that they needed to send a copy of the default notice and deed of assignment. - Capquest solicitor said that wasn't the law and judge then got his books out to check on the letter of the law - and it basically said that it was the agreement and any letters that pertained to the original agreement - judge says that they didnt have to send deed of assignment but should have sent copy of default letter as i disputed ever recieving that.

4) I say to the judge that because they didnt have the paperwork when they filed the SD they could not know if the debt was enforceable so they were just using the SD as a means of debt collection without exausting other avenues - he said that it doesnt say anywhere that they cant do that ( or something like that ) and throws that arguement out.

He makes it clear that he is not interested in me getting out of this by some technicality but is looking at the cas " in the round "

5) I show the judge the letter saying that capquest were withdrawing the SD and I could consider it a nullity.

Judge looks at letter and says to Capquest solicitor - i think this may be a trump card here as it clearly states that capquest are withdrawing the SD and adjourns for half hour while solicitor can take advice from capquest on this.

Come back into chambers and solicitor says that because I have gone ahead with the set aside that this letter is irrelevant as they are now forced to defend the set aside and that in the letter it says that they are qithdrawing the demand while obtaining the paperwork requested.

Judge says that because it states in the letter that they are withdrawing it while they get the paperwork that i have requested and not the paperwork they are legally obliged to send, as they haven't sent me all the paperwork i requested then the letter does apply and that they have withdrawn the SD.

Judge goes on to say that he is going to look at this case - "in the round" and was i disputing the money owed - I said yes, that they can not apply interest to the debt- He says but are you disputing the principle sum - I say i am if it is not enforceable - he says that if capquest produce the default letter as required to then do i dispute it - I say that i know there is money owed but i dont know how much.

Judge suggests adjouring for 28 days so that capquest can get the relevant docs and once produced we can negotiate with them - he suggests that if I can not pay an agreed lump sum then I could maybe make monthly payments and have a charge put on my house.

6) I say to judge that i personally do not agree to that option as i do not want the threat of bankrupcy hanging over my head and feel that there are grounds to have this SD set aside as the judge has already indicated that capquest had withdrawn it. - Capquest solicitor makes his closing arguement and says that we don't dispute the original debt and principal ammount ( judge pipes up that we are disputing it because there are no default notices ) and that the judge is only going to have this before him again because they will go over all the moot issues, get all the paperwork required by law and issue another SD.

Judges Verdict - Judge agrees with Capquest arguement that he expects to see them re issue another SD when they have all the required paperwork and that this one will be personally served and that more costs will be incurred - BUT he says that the SD can be considered withdrawn by capquest because of their letter and that he is setting aside the SD. He goes on to say that to keep judicial continuity if this come back to court he will be hearing it and once capquest have sent the default notice copy and statement of how the money owed is made up that he wants me to make positive steps to enter into negotiation with them over the debt and maybe offer monthly payments and maybe agree to a charge being put on my house. He awards costs of £25 to capquest because I made them defend my set aside application when they had already withdrawn it - but says they needn't have sent a solicitor - a letter to the court stating that they had already withdrawn the SD would have been fine - hence only £25 costs.

So although I won the day I feel like it is a hollow victory - because the judge is basically saying that i have to pay them once they come up with the paperwork - and THEY CAN issue another SD.

afterwards Capquest solicitor ( representative from another firm ) says well done - nothing personal and that was one of the longest chambers sessions he'd ever had and to contact capquest to sort this out or we'll be back infront of the judge again soon.

sorry to hear you ran into the dj lottery...the guy didnt seem interested in any point of law only on whether money owing or not....ridiculous

Anna, believe it or not you won - you have the SD set aside, which is what you set out to do - so be happy

NOW, when they come back for more you will be much better prepared, showing the DJ why they cannot enforce with an SD, but instead need to apply for an CCA S.65 order (see my posts above) which you *may* be able to successfully defend as well.

Try not to admit that there is any amount lawfully owing - that is for the Court to decide .....

the amazing part of it is..i often wonder why a dca would want to make anyone bankrupt? for a start it would cost them in excess of a grand in order to do so, and it gains them nothing...any assets are taken over by the official receiver, and it could be they could end up with nothing and the debt is discharged after a year or so...its almost like shooting yourself in the foot...crazy

Well, as long as all the OP's assets inc the house (less essential clothing bedding and cooking stuff etc + a car if it is worth £1k or less and is essential for work) are more than the amount owed to all creditors, then the creditor would get back every penny and all expenses.

The OP would then also have the hassle of dealing with the Courts and the OR, being an undischarged bankrupt for up to 12 months and then even being a discharged bankrupt makes life difficult after that - even getting insurance

and the £25 ..... put that down to experience I'm afraid - it was pretty lenient in the end JMHO

Anna, believe it or not you won - you have the SD set aside, which is what you set out to do - so be happy

 

NOW, when they come back for more you will be much better prepared, showing the DJ why they cannot enforce with an SD, but instead need to apply for an CCA S.65 order (see my posts above) which you *may* be able to successfully defend as well.

 

Try not to admit that there is any amount lawfully owing - that is for the Court to decide .....

I will be looking into this now and preparing for round 2 - but the judge basically said they can issue another SD - and this goes against everything i have read on this forum - everyone is under the impression that once a SD has been successfully defended they cant go for another one - can anyone show where in the law it says this ???

I know i shouldn't be admitting anything, but the judge was not to be toyed with and basically forced me into a corner to admit that there was a sum of money owing.

I would also like to thank everyone on this forum for their help and support over this matter - you really made all the difference. TNX