Me v Capquest / HSBC

[Elenathion]

Continued from this thread: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/154428-bankruptcy-threat-please-help.html

 

Thankyou to everyone who helped on the previous thread, I thought I'd start this one now in the event that my case can help anyone.

 

Today I've done tons. I nipped to the CAB this morning to have them check over my forms. They actually told me that any contact with a DCA by phone does not constitute acknowledgement, as long as you don't later refer to this conversation in a letter. As such I then phoned Capquest to ask to speak to Johanna O'Keefe who is the named contact on my SD. I know I shouldn't have phone contact but I wanted to check whether she was contactable. Surprise, surprise, they couldn't put me through to her but they did offer to get her to call me back. It's now about 14 hours later and I've heard nothing so I think it's fair to say that she is uncontactable. As such, I've used this on my set aside (see below).

While on the phone I did ask them to confirm when a last payment to this alleged debt was made and they said in 2004, so that has scuppered my 6 year angle if so. I've checked old bank statements and I may have been paying certain things then so this is possible. They were unable to give me any details of the payment though as they said they didn't have the info so i'm hoping that may give me some leverage on the 6 year issue as if they can't prove it, surely that will go in my favour.

 

I then mailed off my letter to them, which I included the statute barred aspect anyway, just in case and also did the cca request. I also sent a SAR request to HSBC asking for full details of this account with the alleged debt. I then went over to the court and handed in my set aside. So all in all, a very profitable day. I should note that at no time did I acknowledge this debt in any of my correspondance today.

 

Here are the letters that I used in case they can help anyone. I did them all from bits on this site so thankyou to the original authors

Edited August 4, 2008 by Elenathion
mis-spell

[Elenathion]

Response to Capquest stating statute barred and requesting CCA.

 

 

My address

Date

 

Capquest Debt Recovery Limited

PO Box No: 413

Fleet

GU51 9AR

 

To Whom It May Concern:

 

Your Reference:

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

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 me 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.

 

Furthermore, I request that you send me a true copy of this Credit Agreement.

 

This is my right under the legislation contained within Section 77 (1) and Section 78 (1) of the Consumer Credit Act 1974, and I am entitled to receive a copy of my Credit Agreement on request.

 

Your obligation also extends to providing me with a statement of account. I enclose a £1 Postal Order, which represents payment of the statutory fee payable under the Consumer Credit Act. I understand that a copy of my Credit Agreement should be supplied within 12 working days from the date of this letter.

 

I also understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the Agreement under these sections of the Act.

 

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed Credit Agreement within 12 + 2 working days of a proper Consumer Credit Agreement request.

If you fail to comply with a legitimate request the account enters a default situation, and if you fail to comply after a further 30 days you commit an offence.

 

As you are aware, a Credit Agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

 

Further to the above, please ensure that any contact by yourselves is made in writing only to the above address. Telephone calls and personal visits will not be accepted and viewed as harassment - Administration Of Justice Act 1970, Protection From Harassment Act 1997, Communications Act 2003. If you continue to harass me by telephone I will report you to OFCOM, Trading Standards and The Office Of Fair Trading, meaning that you will be liable to a substantial fine

 

May I remind you, there is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, Police attendance.

 

As this account is now in dispute, I would also draw your attention to The Banking Code Section 13.6:-

 

We may give information to the Credit Reference Agencies about personal debts you owe us if:

·The Amount Owed is Not in Dispute.

·The Office of Fair Trading provided a Code of Guidance that is in relation to Debt Collection: Office Of Fair Trading 664 Response to consultation paper and final guidance on unfair business practices dated July 2003

Deceptive and/or Unfair Methods-2.8 Examples of unfair practices are as follows:- Not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

If you continue in your pursuance of this account I will have no other alternative than to report you to both, The Information Commissioner and The Office of Fair Trading.

 

Furthermore, I shall submit a Consumer Credit Act 1974 complaint to the Office Of Fair Trading upon the basis that you have failed to comply with the Office Of Fair Trading's direction of 5 April 2006 and are therefore not a 'fit and proper person' to hold a Consumer Credit Licence under the 1974 Act. If you do not understand what this means then please seek advice from your legal department.

In summary, I DO NOT ACKNOWLEDGE THIS DEBT AND THEREFORE REQUIRE YOU TO PROVIDE THE FOLLOWING DOCUMENTATION BEFORE I CORRESPOND FURTHER :

 

1. Confirmation that this matter is closed due to the alleged debt being statute barred.

2. True copy of original Credit Agreement

3. Statement of Account

4. Copy of the executed Deed/Notice Of Assignment from the Original Creditor and Capquest Investments Limited.

5. Fair Processing Notice.

 

I look forward to hearing from you within the statutory time limit.

 

Yours faithfully

 

My Name

Edited August 4, 2008 by Elenathion
Bad formatting

[Elenathion]

Subject Access Request (S.A.R - (Subject Access Request)) to HSBC

 

My Address

HSBC Holdings plc

8 Canada Square

London E14 5HQ

Date

Data Protection Act 1998

Subject Access Request

 

 

Dear Sir/Madam

 

ACCOUNT NUMBER: Acct Number

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

I have recently been contacted by Capquest Debt Recovery claiming to have bought an alleged debt from you.

Please supply me with full disclosure of anything associated with this account or with my name. This includes but is not limited to: all documents, transactions, transcripts, date, statements and information about any charges.

Additionally, where there has been any event in this account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to this account.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

I enclose the statutory maximum fee of £10, which must not be used for any other purpose. You have 40 days in which to comply.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. I would be happy to collect the Data from my local branch.

 

 

Yours faithfully,

 

 

My Name

Edited August 4, 2008 by Elenathion
Formatting

[Elenathion]

Form 6.5 - Application to set aside:

 

Section 2:

 

Do not admit the debt because the existence/enforceability of the alleged debt is in dispute:

The respondent alleges that the applicant is indebted to it in the sum £xxxx, being the amount outstanding under an agreement regulated by the Consumer Credit Act 1974 (“CCA”). It is further alleged that the debt was assigned to the respondent from HSBC Bank Plc on xxxx. The applicant will say that the statutory demand should be set-aside upon the following grounds;

a) 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.

b) The applicant does not admit that the debt exists. The respondent is put to strict proof that that the alleged agreement was entered into between HSBC Bank Plc and the applicant; and at what place and on what date and upon what terms.

c) The respondent is put to strict proof that the alleged debt has been properly assigned.

d) The respondent is put to strict proof that a compliant default notice was served in relation to the alleged agreement pursuant to CCA s.88(1). Further or alternatively, the applicant believes that the alleged debt contains sums levied by way of penalty charges which the applicant will say are contrary to common law. Accordingly, any default notice which may have been served could not have contained accurate particulars of the outstanding debt and would therefore have been defective and invalid.

e) The applicant has potential grounds of action against the respondent for damages in respect of the applicant’s pain, suffering and loss of amenity caused by the respondents harassment. Accordingly, any proceedings initiated by the respondent may be subject to a counterclaim.

f) Attention is drawn to recent correspondence between the applicant and the respondent, exhibited hereto as ‘B’, in which the grounds upon which the alleged debt is disputed were set out clearly, coherently and in full.

g) The respondent has chosen to serve a statutory demand by ‘regular’ post. In view of this, and of the matters pleaded above, the applicant avers that the service of the statutory demand is demonstrably frivolous, intimidatory and an abuse of process.

h ) The respondant's individual named on the statutory demand is not contactable. The applicant believes that this invalidates the statutory demand according to The Insolvancy Rules 1986, Rule 6.2.

 

 

Accordingly, the applicant respectfully requests that the statutory demand be struck out or set-aside. Further, the applicant invites the court to make an order of costs in favour of the applicant in respect of the reasonable cost of preparing this application and of attending any hearings in respect thereof.

 

I make this statement with the sworn belief that all facts stated are true.

[Elenathion]

There ya go, any comments

[smc1878]

elenathion these are very detailed and look like they have covered most stuff, I can only comment on the statue bared stuff with me dealing with something similar

hopefully somebody who knows more than me will come along and advise

 

when are you going to court to get your SD set aside for capquest?

 

I am going wednesday and so have subscribed to your thread to see how you get on as well, as my case is similar to yours

 

good luck with your letters

[ScarletPimpernel]

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

Take this out. The offence under CCA 1974 was removed by CPUTR 2008.

 

CPUTR prohibits aggressive behaviour, and specifically mentions threatening legal action which cannot legally be taken. It's worth a read.

[Elenathion]

Oh I didn't realise that, I've already sent it. Hopefully that will be overlooked.

 

Thanks smc, I went to court yesterday to file the set aside, and had a confirmation through the post today to say that a date and time will follow, so just got to wait now.

[Elenathion]

Today I've had a letter back from Capquest saying thanks for your correspondence and your account is on hold while we request the information from HSBC. They have included a deed of assignment though but I think it is invalid. The deed of assignment is dated yesterday so I think they've just drawn one up in order to send it to me. Am I right that this isn't valid.

Edited August 7, 2008 by Elenathion
mistake

[Shawn0109]

Hey Elenathion, I'm not gonna go into detail on this because I have had the same dealings with crapquest, had the SD from them by second class post, my hearing was supposed to be in 3 weeks time yesterday got a letter from my local County Court stating that the hearing was vacated so no need to go to it and that the SD had been Set Aside, here is my thread if you want to read up on it Statutory Demand Set Aside Hearing Need Help and Advise Please..**WON** and in answer to your question yes the Deed of Assignment is not valid because it has yesterdays date on it this should be sent to you way before they even attempt to issue a Stat Demand, if you need any help with this or any questions you want to ask just PM me and I'll try to help you as much as I can.

[datasafe]

Thanks for the reply Elenathion.

 

For others, my situation is similar. I've just copied the details below:

 

I'm seeking some advice on how to deal with a letter I received from Capquest dated 25th July.

 

The letter contained a Statutory Demand for Bankruptcy!

 

To my knowledge I've not had any previous dealings with this company.

 

It refers to an unsecured overdraft my wife and I had with National Westminster Bank prior to 1995. To cut a long story short. We had a joint account, I was made redundant and we couldn't pay it back. I had a meeting with the Bank's regional manager who stated that as there was little chance of them getting their money back, he'd recommend the debt be written off. That was back before 1995.

 

Anyway, for some reason, we'd been paying NatWest £50pm to clear the debt since 1995. It was £11,000 + and now is £5,000. However, about 4 years ago because my wife and I seperated, she cancelled the payment for £50 to Nat West. No further payments have been made since then. This is of course within the 6 years!

 

What should I do?

 

I've spoken to the Bridgend County Court and they are sending me forms to apply to have the case set aside. Will the judge allow it to be set aside and on what grounds can I request this?

 

This is all very scarey!

 

Cheers

 

John

Edited August 7, 2008 by datasafe

[Elenathion]

Thanks very much Shawn, I'll bear that in mind when I need more help =O)

[MARTIN3030]

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

[Elenathion]

Update: This was successfully set aside with costs awarded =O)