Capquest/HL - claimform Cap1 debt *OH gave in £30PCM*

[rogermeard]

a year or so ago my partner received the usual from these guys ref a credit card.

 

we sent off the CCa letter,

they replied we will send out docs etc.

 

they then replied with a very dodgy photocopy of a part agreement.

 

Also a number of false letters alleged from Credit Card Company stating they sold debt to Cap quest.

Then we heard not a thing from them for a year .

 

Now they're back again at us , with a new option "pay a sum, we will add to it , you will pay off quicker etc" the usual trick.

 

They have now sent a second letter from their "Legal Litigation team" ,

stating it will go to further action etc.

 

my question is what to do now ?.

 

Should i CCA them again,

ignore em,

send a letter ?

Any help?

[42man]

Edit to suit....

 

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the 26th July 2007.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act and is therefore unenforceable under section 127(3) of the same act.

 

 

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else. I would also like to note that as from the (12+2 working days + 30 calendar days) it becomes a criminal offence.

Please note you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies including any defaults. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[42man]

I would say 'refer to your response sent with regard to my letter received by yourselves on the XXXX - (do you still have the recorded delivery slip ?)

[42man]

If you can't find the agreement they sent you, then you may need to send off another request....!!

[rogermeard]

UPDATE..........

 

They wrote to me today saying they have "investigated me financially and are preparing a Statutory Demand

under section 268(1) (a) of the insolvency act 1986. ETc Etc".

 

Then at the end of the letter they have offered me a reduced figure to settle now or in part payments.

 

They have not acknowleged at all my previous letter that i sent as in the above template,

which i sent by recorded/special delivery.

 

I am really scared now as to what to do next?

[ODC]

Typical scary letter from Crapquest.

 

They are in breach of your LEGAL request for a CCA

 

so should they be foolish enough to send you an SD it would be a very simple matter to get it set aside.

 

You should now make an official complaint to them as well as reporting them to TS and the OFT

[rogermeard]

Typical scary letter from Crapquest. They are in breach of your LEGAL request for a CCA so should they be foolish enough to send you an SD it would be a very simple matter to get it set aside. You should now make an official complaint to them as well as reporting them to TS and the OFT

 

How do i go about that then?. Do i wait for them to serve the SD?. Why do they always send letters on the wkend?. Another rubbish wkend again now!!

[ODC]

DCAs send letters at the weekend so as you are tempted to ring them. They know that CAB and other advisory bodies are not available.

 

Fire this off to them

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated **********, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested Capquest supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Capquest have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or Capquest, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

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 [£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.

(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; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is 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 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 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—

 

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

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced.

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as Capquest become compliant with my request. As Capquest are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order
  

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Regards

(Amend to suit)

[rogermeard]

Wow....i will certainly be forwarding this. Thank you for your help.

[rogermeard]

UPDATE.............................

As usual its a friday reply from Capquest.

 

got a letter from them saying they were not aware a dispute was in progress.

 

They then refer back to my request in May last year for the CCA to which they say they sent to me (they did but was a dodgy photocopy).

 

Well they again have sent the dodgy photocopy saying it's an agreement plus they will forward the Terms and Conditions once they get them from the credit card co?????.

 

That doesn't sound right??.

 

The debt was from 2005 so are they trying to get copies of the new amended terms and conditions?

 

They then have included a series of printout's that claim to be statements from the card account,

they are not proper statements though just a list of purchases /payments etc.

 

Also they have included a letter from the Credit card co saying that they have sold the account to Capquest.

 

Now this"letter" is very very iffy, it has no Credit card address, is signed by someone from "risk management"

and just looks plain wrong,

it's not original just printed and the titles and colour are very faded.

 

Also Capquest are saying they are not bound by the CCA 1974 because i didn't include a £1 postal order?.

But they do endeavour to fulfil a request at the earliest oppurtunity.

My account is again on "hold"

 

Now guys what do you make of all that...

 

....oh and they say that i have not contacted them since last June

but in turn niether did they so why the long break.

 

All these DCA's have resurfaced chasing us since we had a CCJ for mortgage arrears in Feb this year,

it was all quiet before that.

Edited May 23, 2008 by rogermeard

[ODC]

UPDATE.............................

As usual its a friday reply from Capquest.

 

Anyway got a letter from them saying they were not aware a dispute was in progress. They then refer back to my request in May last year for the CCA to which they say they sent to me (they did but was a dodgy photocopy). Well they again have sent the dodgy photocopy saying it's an agreement plus they will forward the Terms and Conditions once they get them from the credit card co?????. That doesn't sound right??. The debt was from 2005 so are they trying to get copies of the new amended terms and conditions?

 

.

How stupid can Crapquest be. They have by their own admission confirmed that what they have provided does not contain the prescribed terms and that they are waiting to get them. IDIOTS

 

You really should write and thank them.

[zazen.warrior]

As an aside I had ONE call from Capquest about a month ago, no idea what it was about as all I said was 'in writing please' until they hung up - I have not heard a single word from them since, very odd!

[rogermeard]

I CCA them in May last year

it's now a year on and

they are still presenting that scanned photocopy of an Agreement with no Terms and Conditions

and a rubbish pretend letter from credit card co.....

 

....who incidentally i contacted last year and they had no knowledge of a letter written by them saying the debt was sold to Capquest,

the dodgy letter was also enclosed in the same envelope as a letter from Capquest..

....DUMB!!

 

I wish these guy's would take me to court instead of continuous threats,

if they had a case to present and feel they can confidentally present it then do it for gods sake.

Instead its bully, bully ,bully all the time.

 

Will it end ever??

[ODC]

They obviously think you are as stupid as they are

[rogermeard]

UPDATE (agian on a friday..lol!!).......................

 

Recieved a reply from Capquest saying they have enclosed the agreement and terms and conditions etc

and thier obligation under the CCA 1974 is fulfilled.

 

I haven't got a scanner but this is EXACTLY the same as what they say is mine,

although the interest rates are different, a photocopy . My card was from 2004.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html#post1084114

 

Is this enforcable or not what i asked for??.

 

Sorry for borrowing someone else's pics.

[ODC]

Obviously its not enforcable. When they sent it to you LAST year if they thought it was enforcable then they would have issued court proceedings by now.

[rogermeard]

So what would be my next course of action or sit tight?

[ODC]

Sit tight and see if they make any demands for money

[rogermeard]

Hi guy's, i have over the years been in/out of dealings with an account with a DCA that is famous throughout this forum, well they seem to have upped the ante now and have put a claim for the debt through the Bulk County Court Centre.

 

Now i have CCA'd this dca repeatedly and always get the same useless scanned/photocopied docs from them. Now i know for definite that one very important doc has been fraudulently tampered with by them as dates/addresses do not match etc to fact. I suspect it was tampered with as we stupidly signed a letter when we first dealt with them a while back. They are also claiming for interest from deed of assignment (wrong dates again as well) and daily interrest.

 

Now i want to defend this claim, what do i send back to the courts?. Just the form stating defence or evidence etc or does that come when /if we physically go to court. Will be very interesting if they present these alleged docs and i can deffo prove are fake and wrong.

[BankFodder]

Whether you are drafting a claim or a defence, you only plead facts and not your evidence.

 

This means that if you believe that the documents which they have sent you do not satisfy the statute then you merely plead that the claim is denied, that you made a request as per s.xxx of such and such statute and that they have failed to comply.

leave it at that.

See what their repsonse is. you can reply or amend your defence later.

 

I suggest that you buy a good county court guide. We sell an excellent one

[zazen.warrior]

First you need to acknowledge service online and them send a CPR 18 request to the claimant.

[rogermeard]

What is a CPR18??

 

Our last dealings with a County Court Claim on a different matter ended up with us having to appeal against the judgement as i didn't enter a defence properly. All i want to know is what section of the form i send back and what do i put with it. If we claim we are defending then will it actually get to our local county court for a hearing?. Which is what i want so i can physically prove the docs are not correct.

 

I am surprised the DCA has gone the court route after 2 yrs or so, and our comms to/fro regards dubious docs and their endless offers to settle for lower figures. Weird and silly.

[42man]

Roger.....can you tell us what the POC's are ? (Particulars Of Claim) ? but don't be specific with the numbers ?

[42man]

Basically you need to acknowledge the claim within 14 days of the date on the claim form, then you get a further 14+3 days in which to submit your defence.....BUT sending an order to produce certain documents (possibly originals) can be made - BUT we need to know the Particulars Of The Claim...

[rogermeard]

POC as follows.....

 

Monies due under regulated Credit Agreement number 222222222222222222

 

Between

 

????????????????? Limited and the defendant the benefit of which was assigned to the Claimant on ??/??/200?.

The Agreement terminated upon the Defendant(s) failure to comply with the terms of the Agreement and or the statutory Notice Of Default served by ???????????????? Limited.

The Claimant seeks interest pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum from the date of issue continuing at the daily rate of 0.64.

Any payments or queries should be directed to the Claimant etc etc.(Tel)