CRAPQUEST - Statutory Demand

[fairy 123]

Hi,

 

Hope somebody can advise me on this.

 

I had a student account with an overdraft with nawest that I defaulted on in 2005 for just under £3000, and didnt hear from NatWest at all till earlier this year I got a letter from crapquest saying they have bought the debt and I ignored the letter, I know I should have sent off for cca, but I didn't really get round to it.

 

I have to admit when they first sent me a letter i rang them up and arranged a payment plan but then i had to cancel the direct debit and have not made any payments to them.

 

I have now received a statutory demand from them first class, dated 29th April and the letter accompnying it is dated 30th April.

 

Please can somebody advise me on what I should do, should i ring them to arrange a payment plan, I honestly cannot afford to pay this in one go.

i think some of this ovedraft will more than likely be charges but I have not claimed those.

 

I hope you can help

 

Thanks

[PGH7447]

Bump

[42man]

OK, as overdrafts are not subject to CCA rules, you would need to write to them saying that the account is in dispute (do you have all your statements ?)...if not you will need to send a SAR to HSBC to get all your statements to reclaim the excessive charges + 8% compounded interest - Is there a court name on the letter by the way ?

[fairy 123]

Thanks for getting back to me..

 

there is a court name on the letter, does this mean anything?

 

If I send a S.A.R to natwest then do I send a seperate letter to Capquest saying it is in dispute and will this stop the statutory demand?

 

Thanks again for your help

[42man]

DEFINATELY Send a SAR request...and ask them for (copies of defaults) and any agreements too....write to Capquest saying that the account is disputed due to a substantial amount of excessive charges

[fairy 123]

Hi,

 

Thanks I will print off these letters and get them sent off first thing, recorded delivery.

 

Thanks so much for your help and I'll probably be bugging you again when I get a reply.

 

Thanks

[boyboynova]

make sure you get the SD set aside,download forms 6.4 & 6.5 and take them to local court its free,the clerk will sort them for you

[fairy 123]

Hi boyboynova,

 

Thanks, I have downloaded the forms, they are petty straightforward but can I just ask for help on form 6.5.

 

Section 2 on that form asks me to pick one of 8 suggestions why it should be set aside, I'm assuming its the first one but what do I put for the reasons?

 

The first one is: Do not admit the debt because........?

 

Thanks in advance for your help

[nicklea]

As 42man said, most of the CCA rules regarding form and content of notices don't apply.

 

However some still do, the bank must have sent you an accurate, valid default notice. Without this they cannot enforce the debt.

 

Also, if the DCA are the claimant on the SD rather than the bank then they must have sent you a notice of assignment by recorded delivery under the Law of Property Act 1925. It is very unlikely they would have done this.

 

 

Have a look around the site for some defences - particularly by pt2537 and also look here:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/135078-me-1st-credit-stat.html

 

hope this helps

[nicklea]

Where it says claimant below change it to respondant and change the paragraph numbers

 

The bit about the default notice being accurate with regard to the amount lawfully owing is to cover any penalty charges that they may have included

Default Notice

1.

 

2.It is denied that any Default Notice as required by s87(1) Consumer Credit Act 1974 ("CCA") was ever received.

 

3.Without prejudice to the above, I put the Claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

 

4.For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-

 

S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e)to enforce any security

5.I note the opening part of section 88(1) CCA, which states:-

 

88. Contents and effect of default notice.

- (1) The default notice must be in the prescribed form.......

 

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.

 

6.The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.

 

7.I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.

 

8.In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:

 

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage… If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take…"the next step" “

 

“That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. … he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right.”

 

As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

 

 

 

Notice of Assignment

1.It is denied that any Notice of Assignment was correctly served on me as required by the Law of Property Act 1925. I therefore put the Claimant to strict proof that said document in the prescribed format was sufficiently served on me in accordance with the Law of Property Act 1925.

 

2.Failure to comply with the Law of Property Act 1925 renders any assignment of the debt ineffective and so the Claimant would have no right of action. I refer to the cases of Holt v Heatherfield Trust Ltd [1942] 2 KB 1, Cia Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101 andHolwell Securities Ltd v Hughes [1973] 1 WLR 757 in support of this.

[fairy 123]

Hi nicklea,

 

Thanks for your help but I am getting slightly confused.

Let me just go through what I have to do and you can tell me if I am completely wrong, which I most likely am!!

 

I send an SAR to bank, and an account in dispute to capquest, also file the set-aside forms at the local court.

 

Can you please explain where do I send your letter, I really don't understand what its for. Sorry to be dumb..

 

Thanks:)

[fairy 123]

Sorry, I have just had a look around the link you have given and figured it out, I should put that on form 6.5.

 

I'll get all that sent off today, thannks again to everyone for your help and I'll jeep you posted.

[nicklea]

That's right,

 

You say I do not admit the debt because

 

1 It is denied that any Default Notice as required by s87(1) Consumer Credit Act 1974 ("CCA") was ever received.

etc

 

Don't forget that you need to swear the affadavit in fromt of a court officer or a solicitor (the ocurt officer will do it for free). If you don't do this then you will just get the form sent back to you.

[fairy 123]

Okay cool, thanks nicklea.

 

I'll go to court on Monday, am just on way to post SAR and the rest.

 

Thanks for the link as well nicklea, its all very interesting reading, and quite scary how easily the DCAs can apply to make you bankrupt, especially since it doesnt look like a legit letter and arrives in the 2nd post, it could be so easy to ignore.

 

Take care

Fairy

[tomterm8]

Since it was sent by 1st class post, there is little to worry about. Do you own your own home? if not, they will NOT file a bankruptcy petition against you anyway.

 

have they added charges you could reclaim?

[fairy 123]

Hi tomterm8.

 

They have added about £50 of interest if I do not reply.

 

Are you sure, tomterm8, they won't file for bankruptcy, I dont have a mortgage I live with my dad, I don't own this house its my dads.

 

Thanks