Bankruptcy threat - please help**Set Aside with Costs**

[Elenathion]

Hi there,

 

I've read through lots of threads on this site and I'm still a bit (actually a lot) confused about what should I do and in what order.

 

Yesterday I received a letter from capquest threatening me with bankruptcy for a debt from 1998. I'm pretty sure that I have not made any payments or had any contact with anyone regarding this debt in the last 6 years. I have received letters from them but have just ignored them as I couldn't deal with them. I have some mental health problems and things like this I can't cope with. My first question is: is this debt outside the 6 years because I have received letters from them even though I haven't responded?

 

Secondly I'm not sure what exactly to do next and what order to do things. Do I send a letter stating that this debt is statute barred or do I send one asking for the CCA? Should I apply to the court for it to be set aside yet or do the letters first?

 

I'm sorry to have to write this when I know that there are lots of other threads about this but I just can't make sense of what to do first. As I mentioned, I do have some mental health problems so I'm very confused by all this. I'm panicing so much about this as well and it's making my health worse.

 

Any help would be really gratefully received.

 

Thankyou.

[MrCollio]

If the debt has not been acknowledged or no payments made in the last 6 years then it is statute barred.

 

have you received a statutory demand?

 

or is it just a threat letter.

[Elenathion]

It is the statutory demand with a letter saying it is unfortunate to do this. I hope they're not losing sleep lol.

[Guest forgottenone]

Just a suggestion ... really ... for us/we to be exactly clear on what you've received ... then there can be no doubt whether it's a 'threat' or the genuine thing ... can you scan it, post it here using Photobucket? As I said, it's just a suggestion ...

[Guest forgottenone]

Anyway, you seem already to have a grasp of the basic, reading again what you've posted. Someone else here will help you with what to do next.

[MrCollio]

If it is a statutory demand it must be set aside.

[Elenathion]

I can't post the scan links until I have made 5 posts so here is number 3 =O)

[Elenathion]

And number 4

[MrCollio]

If it is a stat demand

 

The forms you need are as follows.

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf

 

I would file a defense as below.

 

I,

Apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of an alleged debt when such pressure is contrary to the OFT Debt Collection Guidelines.

 

I would point out that under the Limitation Act 1980 Section 5 "an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."

 

I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that "it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period".

 

The last payment of this alleged debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from us in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against us to recover the alleged amount claimed.

 

The OFT Debt Collection Guidance states further that "continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970".

 

Also, I have never received a legally valid default notice for the alleged account as required under the Consumer Credit Act 1974

[Elenathion]

And number 5, I do apologise for this =O)

[Elenathion]

Okay here is what I have received, it's 3 pages.

 

http://i270.photobucket.com/albums/jj85/Elenathion/Scan0004.jpg

http://i270.photobucket.com/albums/jj85/Elenathion/Scan0005.jpg

http://i270.photobucket.com/albums/jj85/Elenathion/Scan0006.jpg

[MrCollio]

Thats a Statutory Demand.

 

Please see above and it needs to be set aside.

 

The Stat Demand is in the correct format and they have even named the court to get it set aside.

[Elenathion]

Thankyou =O)

 

So what order do I do this in?

 

Am I right in thinking that I send a letter to capquest first? Should I combine the statute barred letter and the CCA letter into one?

 

Then do I apply to have it set aside after I've sent that letter? Do I need to wait for them to reply before getting it set aside or is my letter to them enough of a dispute to have it set aside?

[Elenathion]

Thanks for posting that example of what to say also. Is it okay to say something that serious or will the court look down on me for that?

[smc1878]

Hi Elenathion

 

I am in exactly the same situation as you, have a statue barred debt and got a SD yesterday off the same company as you, even with the same named person as a contact from capquest

 

you will get lots of advice on here there are a lot of helpful people what I am doing based on the advise is the following:

 

1. writing to Capquest recorded delivery with a statue barred letter (done this before in March but will do again) making reference to the Stat demand someone will be able to tell you what template to use or letter (if not I will copy and paste the one I used off this site back in March)

2. I will be filling in the relevant forms to get this set aside as soon as possible, you do have to attend in person.

3.Finally write a letter to OFT to complain, from what I can see CAPQUEST are using these as a form of imtimidating people and making them panic which is really not on

4. i am sure someone with more experience will perhaps imput, but it cost a lot to make a person bankrupt and based on what I have read and on other fourms this weekend, they have sent a load of these out and surely they do not have the funds or intention to make all these people bankrupt?

 

I am so angry with this company right now

[smc1878]

here is the statue barred letter I was given on here a few months ago

 

CapQuest Debt Recovery Limited

Fleet 27

Rye Close

Fleet Hampshire

GU51 2QQ

 

31st March 2008

 

 

 

Dear Sir/Madam

 

Acc/Ref No:

 

You have contacted me regarding the account with the above reference number, which you claim is owed by myself.

 

I would point out that under the Limitation Act 1980 Section 5 “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

 

I would also point out that the OFT say under their Debt Collection Guidance on statute barred debt that “it is unfair to pursue the debt if the debtor has heard nothing from the creditor during the relevant limitation period”.

 

The last payment of this alleged debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against us to recover the alleged amount claimed.

 

The OFT Debt Collection Guidance states further that “continuing to press for payment after a debtor has stated that they will not be paying a debt because it is statute barred could amount to harassment contrary to section 40 (1) of the Administration of Justice Act 1970”.

 

I await your written confirmation that this matter is now closed and that no further contact will be made concerning the above account after that last letter.

 

We look forward to your reply.

 

Yours faithfully

Mr A N Other

[Elenathion]

Thanks for that reply and letter smc. I'm really angry at them also. Threats like this are the last thing that I and probably any of us need at the moment.

 

Are there any links on here that show how to actually fill in the statutory demand form and how to submit it. I'm a bit confused about all the legal terminology as I haven't entered into a dispute with them yet, but does the letter count as the dispute?

 

Also does anyone know where do I stand if I'm wrong about not admitting the debt within 6 years. If I have and I send this letter to capquest does that reset the 6 years?

[MrCollio]

You need to send the letter above to Capquest and get the stat demand set aside at the same time.

 

There are strict guidelines for getting it set aside so the sooner the better.

 

The court will not look down on you. They will think that you know what you are doing.

 

The judge in the court will be very helpful.

 

Start making a list of costs as later you will submit a costs schedule to claim costs.

[Elenathion]

I'll do these both tomorrow. Do I send the form to the court or take it there?

I didn't realise I could claim costs. What can I claim for?

 

I read that the SD is invalid if you can't contact by phone the person who is named on the demand. Do you think it is worthwhile phoning them, without admitting the debt to find out when the last payment was made?

[Elenathion]

Oh I should mention that this debt is an overdraft debt. Does this make any difference to anything?

[saintly_1]

A statute barred debt is a statute barred debt no matter what its for ......

[smc1878]

I'll do these both tomorrow. Do I send the form to the court or take it there?

I didn't realise I could claim costs. What can I claim for?

 

I read that the SD is invalid if you can't contact by phone the person who is named on the demand. Do you think it is worthwhile phoning them, without admitting the debt to find out when the last payment was made?

 

 

i would advise you not to phone them but put everything in writing, I am no expert and I am only going on the advise I have received off the helpful people on the board to help me get through this horrible situation... but these people will just upset you over the phone and make things seem a hundred times worse than it already probably feels

 

also you need to take the forms to court and swear an affit davit? not sure if that is the correct spelling

[alfwithhair]

subbin with interest

[Elenathion]

Thanks for all the help everyone. I've started a new thread now at http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/154556-me-capquest-hsbc.html in case it can help anyone and to keep track of my case.

Edited August 4, 2008 by Elenathion
missing word

[MARTIN3030]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/158682-capquest-dont-let-them.html