Capquest SD letter threat today!

[tiglet]

Erm, six years since you got the loan or six years since you last made a payment on the loan?

[surfaceagentx20]

The ground, if true, will be that:

 

the debt is disputed on substantial grounds, namely

 

[1] the creditor's right to payment of the debt is disputed

[2] in excess of six years has elapsed since I made a payment to the credit of the account in dispute, and

[3] since the payment in [2] above, I have not acknowledged in writing the existence of a debt payable by me to the creditor, in consequence of which

[4] the creditor could not now bring an action for recovery of the debt the subject of this demand by reason of the provisions of section 5 Limitation Act 1980.

 

That's not quite the same as saying it is 6 years since you had the loan. You wil need to check you fit into grounds [2] and [3] and if so, ground [4] follows.

 

Any queries, just yell.

 

x20

[splosher]

Hi

Just spoke to my local County Court regarding this matter of setting aside the SD and have been told that it's doubtful they'll set it aside as i'm acknowledging the debt is mine?! WTF am i supposed to do now? All the advice from this forum - and indeed other ones - tell me that there should be no problem in setting it aside.

As for the debt, it could be less than 6 years since i paid a payment, but to tell the truth i have no idea as my life has been a complete shambles for many years.

Do i now just wait for enforced bankruptcy and accept everything that happens?

[surfaceagentx20]

This is the trouble. Aknowledging you owe an unpaid debt is not a ground to set aside the SD. On the contrary, it's a ground for making you a bankrupt!!

 

The way courts deal with SDs and the way some sites reckon they deal with them are quite different. I just read your post no4. The agreement was taken out in May 2002. For this debt to have ceased being actionable will have required a default followed by no payment or acknowledgement for a continuous period of not less than six years ending on the day you received the SD. In my opinion, it is unlikley a full six years will have leapsed already.

 

If that is so, the debt would appear to be actionable and not statute barred. In those circumstances you will need other substantial grounds to set the SD aside. If you have no other grounds there would be little point in submitting an application to set aside.

 

Further, since the SD was delivered by post, the creditor would be unable to meet the proof of service of SD test in IR 6.11 [relating back to IR 6.3(2)], not produce or produce a highly dodgy affidavit of service and such that, the court would most likely reject the petition under IR 6.11(9).

 

I think the prospects of the creditor succesfully issuing a petition in this case is remote. Further, until the creditor has brought an action, time continues to run. I can't be certain obviously, but I perceive the creditor never had any genuine intention in presenting a petition and that the creditor will abandon the insolvency aspect of its collection methods and sue instead.

 

x20

[splosher]

This is the trouble. Aknowledging you owe an unpaid debt is not a ground to set aside the SD. On the contrary, it's a ground for making you a bankrupt!!

 

The way courts deal with SDs and the way some sites reckon they deal with them are quite different. I just read your post no4. The agreement was taken out in May 2002. For this debt to have ceased being actionable will have required a default followed by no payment or acknowledgement for a continuous period of not less than six years ending on the day you received the SD. In my opinion, it is unlikley a full six years will have leapsed already.

 

If that is so, the debt would appear to be actionable and not statute barred. In those circumstances you will need other substantial grounds to set the SD aside. If you have no other grounds there would be little point in submitting an application to set aside.

 

Further, since the SD was delivered by post, the creditor would be unable to meet the proof of service of SD test in IR 6.11 [relating back to IR 6.3(2)], not produce or produce a highly dodgy affidavit of service and such that, the court would most likely reject the petition under IR 6.11(9).

 

I think the prospects of the creditor succesfully issuing a petition in this case is remote. Further, until the creditor has brought an action, time continues to run. I can't be certain obviously, but I perceive the creditor never had any genuine intention in presenting a petition and that the creditor will abandon the insolvency aspect of its collection methods and sue instead.

 

x20

 

Many thanks Surface Agent

 

If i let this run to court now, what about your last line regarding " ... sue instead"?

Is there anything i can do like send a letter to them?

[surfaceagentx20]

SDs are not 'issued' in the sense they originate out of a court office with a seal attached and stuff like that. They are simply documents in a prescribed form served by creditors. The 'court route' in insolvency proceedings is the presentation of the petition which, as I have said, is an unlikely event owing to the creditor being unable to meet the requirements for proof of service set out in rule 6.11.

That leaves the creditor with one other court route option, the option to sue. I would not advise writing to the creditor unless there was a point in doing so. By all accounts the debt is not yet statute barred but may be close to the deadline. The debt may have other defences, perhaps linked to the way in which the agreement was run or terminated. Writing to establish whether there are possible defences of this kind, whilst tempting to do, may not produce the desired information and serve only to encourage the creditor to get on with things.

Since there will be time to deal with such questions as and when and if a claim is issued, I take the view where the existence of a defence is by no means certain, that the better course is to do nothing until the writ arrives and at that moment, respond with a swift letter to the creditor under CPR 31.14. A letter like the one in this thread.

x20

[splosher]

SDs are not 'issued' in the sense they originate out of a court office with a seal attached and stuff like that. They are simply documents in a prescribed form served by creditors. The 'court route' in insolvency proceedings is the presentation of the petition which, as I have said, is an unlikely event owing to the creditor being unable to meet the requirements for proof of service set out in rule 6.11.

 

That leaves the creditor with one other court route option, the option to sue. I would not advise writing to the creditor unless there was a point in doing so. By all accounts the debt is not yet statute barred but may be close to the deadline. The debt may have other defences, perhaps linked to the way in which the agreement was run or terminated. Writing to establish whether there are possible defences of this kind, whilst tempting to do, may not produce the desired information and serve only to encourage the creditor to get on with things.

 

Since there will be time to deal with such questions as and when and if a claim is issued, I take the view where the existence of a defence is by no means certain, that the better course is to do nothing until the writ arrives and at that moment, respond with a swift letter to the creditor under CPR 31.14. A letter like the one in this thread.

 

x20

 

The letter i meant was a variation on this:

 

Dear Sir/Madam

 

Account no:

 

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

 

I/we would point out that I/we have no knowledge of any such debt being owed to (insert company name).

 

I am/we are familiar with the Office of Fair Trading Debt Collection Guidance which states that it unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question.

 

I/we would also point out that the OFT say under the Guidance that it is unfair to pursue third parties for payment when they are not liable. In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods.

 

Furthermore ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment amounts to physical/psychological harassment.

 

I/we would ask that no further contact be made concerning the above account unless you can provide evidence as to my/our liability for the debt in question.

 

I/we await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

I/we look forward to your reply.

 

Yours faithfully

 

 

 

(Your Name) Print do not sign e letter i meant is like this one:

 

(Thanks to Saintly 1 for this letter)

[tiglet]

let's get the facts - when did you last make a payment on this loan? Did you send the CCA request letter - if so, when?

[splosher]

let's get the facts - when did you last make a payment on this loan? Did you send the CCA request letter - if so, when?

 

Hi Tiglet

 

Last paid on this loan? No idea, but must be probably late 2002/ early 2003. Have i sent the CCA request letter? No, not yet as i've had to deal with other things which have popped-up in the mean time.

[tiglet]

Ok, well it doesn't appear you have grounds for a set-aside, I'm afraid.

 

You would need to prove you either didn't owe the money or the debt was seriously in dispute. You have sent the "in dispute" letter, so you could try on these grounds, but you would need to say why you didn't think it was owed or why you were disputing it.

 

Remind me: did the OC send you this or have they sold it on? if they ahve sold it on, did you receive a notice of assignment?

[surfaceagentx20]

Demanding a copy of the agreement and statement of account under CCA 74 section 77(1) or 78(1) is of little use. Claiming the added sting that if the request is not complied with the creditor’s power to continue with enforcement will be restrained is toothless. Apart from the fact that insolvency proceedings are not ‘enforcement proceedings’ (because the object of the proceedings is the bankruptcy of the debtor not the enforcement of the agreement), invariably by the time the creditor is thinking about bankrupting the debtor the agreement will have long since terminated. Sections 77 and 78 have teeth only in so far as requests are made during the currency of the agreement.

That is not to say a request for the information would be inappropriate, but the difficulty is dressing up the request in the right get up. The request ought not be dressed up as made under section 77(1) or 78(1) for the reasons I have stated and because it will be refused on those grounds. Further, since the applicant will wish to avoid the letter being treated as equivalent to an acknowledgement of receipt of the SD, it must not refer in any way to the claim made in the SD. Finally, it must avoid being treated as an acknowledgement in a way which might renew the limitation period. The final difficulty is whether the information will be forthcoming within the requisite 18 days or shorter period as might remain for filing an application to set aside the SD. Since the letter will not make reference to the SD, it is unlikely the creditor will respond with an undertaking to not file for bankruptcy until after the information has been provided.

If the debt is claimed by way of assignment the SD will say so at Part C.

On the material posted so far, the debt appears incapable of being disputed on ‘substantial grounds’. In which case, back to what I said at post 54.

x20

[splosher]

The OC didn't send anything to me, but the Capquest 3 page court summery does have their name - RBS - on it.

So basically, i have to ride this out or pack-up and do a runner for another couple of years before i can be guaranteed to be over 6 years?

[splosher]

Can i not get this put aside by claiming the amount asked for by Capquest is too much? They're claiming £5100 but i only borrowed £1200 originally.

Also, i haven't had any contact with them prior to this bankruptcy letter, so are there not grounds for setting aside with this?

I'd like to thank everyone for their time and effort regarding this and if it's a lost cause at least we'll be able to see what happens next, won't we?!

[tiglet]

You can state that you dispute the amount and that this is the first time you have heard about it and that you have written to them to substantiate what this is about - the judge may accept you have grounds for a set-aside.

[fiftypence]

Just catching up with this thread - did you actually complete the set aside process or not? And did you send the CCA? If neither of these were done AND the SD was being used by them as a high level threat then they will in all likelyhood follow it up with a 'we are in a position to bankrupt you' threat, if they do that you must CCA them to stop them from going any further with their petition. How they respond to the CCA will dictate what happens next. If its an old debt they may not have the correct paperwork in which case it was all bluff on their part.

 

I have recent experience of ignoring an SD and being threatened with BR (Connaught), the CCA request was enough for them to pack up and go home.

 

Hope that helps.

[splosher]

Hi

I read your posts, Fiftypence and seem to remember that you allowed the 18 days to pass? How did it pan out?

[42man]

Splosher.....how are you getting on with this ?

 

Are you still having difficulties with filling out the forms ?

[42man]

The defendant totally disputes the debt and requests that the demand be dismissed on the following grounds.

 

The alleged creditor has given no proof that the debt is NOT barred by the statute of limitations act.

 

The alleged creditor is in default of my request for a copy of the agreement made under the Consumer Credit Act 1974

 

It is not uncommon for a debt to be made up entirely of excessive charges. The alleged creditor has not sent any statements, notices of assignment or default notices.

 

The statutory demand does not have a contact number or name on it which under rule 6.2 of the Insolvency Laws means that the demand is invalid.

 

The creditor has made no attempt to serve the demand on me this I believe to be an abuse of process and therefore makes this a frivolous attempt to frighten me into paying.

 

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 XXXXX on 17/10/2007.

 

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 XXXXX and the applicant; and at what place and on what date and upon what terms.

 

In the event that the burden of proof is discharged as set out above and entirely without prejudice to the same, the applicant does not admit that the debt is legally enforceable. The respondent has disclosed a copy of the agreement under which it alleges the debt to be owed in response to a request under CCA s.77(4). The alleged agreement is unexecuted and devoid of CCA prescribed terms and accordingly is unenforceable as a matter of law.

 

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

 

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 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.

 

I would also kindly request that the court grant my costs in this matter

 

As a person in the low income bracket (part time worker etc) with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

 

 

15 hours of research into the Insolvency Laws / Consumer Credit Act @ £9.25 per hour = £138:75

 

+ Parking etc etc

 

Write out above....take it to your local court ASAP....ask them to swear you in on the documents on an affadavit. (which will say the same as the 6.4 form)

 

DO IT TODAY !!! (by the way ring your local court and ask them if they handle bankruptcies if they don't ask them where the closest court is that do....

[splosher]

Hi all

 

Well, that's that then.... went up to County Court this morning and after trying to submit the forms, was told i didn't have grounds to set aside as i admited the debt was mine, even though i contested the full amount.

 

F**k it, we'll see what happens next and to tell the truth, i'm too p***ed off to be bothered now as i've been fighting some form of debt non-stop for last 10 years and i need a rest!

 

Thanks to everyone and will keep you informed.

[surfaceagentx20]

Mate,

The response from the court is somewhat strange. Suppose you'd said the agreement is mine but I contest I owe any more than £50.00?

In no way is this curtains. The creditor will be unable to present a bankruptcy petition because they will be unable to comply with IR 6.11 as I was saying earlier.

In any case, in no way is this curtains. The creditor will not present a petition because it won’t be able to satisfy the requirements for proof of service of the SD. So that you know exactly where I’m coming from below are the requirements of rule 6.11. Look at the bits in red:

Rule 6.11.Proof of service of statutory demand

(1) Where under section 268 the petition must have been preceded by a statutory demand, there must be filed in court, with the petition, an affidavit or affidavits proving service of the demand.

(2) Every affidavit must have exhibited to it a copy of the demand as served.

(3) Subject to the next paragraph, if the demand has been served personally on the debtor, the affidavit must be made by the person who effected that service.

(4) If service of the demand (however effected) has been acknowledged in writing either by the debtor himself, or by some person stating himself in the acknowledgement to be authorised to accept service on the debtor's behalf, the affidavit must be made either by the creditor or by a person acting on his behalf, and the acknowledgement of service must be exhibited to the affidavit.

(5) If neither paragraph (3) nor paragraph (4) applies, the affidavit or affidavits must be made by a person or persons having direct personal knowledge of the means adopted for serving the statutory demand, and must

(a) give particulars of the steps which have been taken with a view to serving the demand

personally, and

(b) state the means whereby (those steps having been ineffective) it was sought to bring

the demand to the debtor's attention, and

© specify a date by which, to the best of the knowledge, information and belief of the

person making the affidavit, the demand will have come to the debtor's attention.

(6) The steps of which particulars are given for the purposes of paragraph (5)(a) must be such as would have sufficed to justify an order for substituted service of a petition.

(7) If the affidavit specifies a date for the purposes of compliance with paragraph (5)©, then unless the court otherwise orders, that date is deemed for the purposes of the Rules to have been the date on which the statutory demand was served on the debtor.

(8) Where the creditor has taken advantage of Rule 6.3(3) (newspaper advertisement), the affidavit must be made either by the creditor himself or by a person having direct personal knowledge of the circumstances; and there must be specified in the affidavit

(a) the means of the creditor's knowledge or (as the case may be) belief required for the

purposes of that Rule, and

(b) the date or dates on which, and the newspaper in which, the statutory demand was

advertised under that Rule;

and there shall be exhibited to the affidavit a copy of any advertisement of the statutory demand.

(9) The court may decline to file the petition if not satisfied that the creditor has discharged the obligation imposed on him by Rule 6.3(2)

Treat the delivery of the SD through your letter box as little better than junk.

x20

[42man]

???? Who told you that you didn't have any grounds to set aside ??? Who asked you if you admitted the debt ???

[fiftypence]

Hi

I read your posts, Fiftypence and seem to remember that you allowed the 18 days to pass? How did it pan out?

 

I completely ignored the SD, after about 21 days they sent me a letter which basically said they 'we're in a position to bankrupt you'. At that point I CCA'd Connaught. Within 48 hours they replied saying they had closed the file and returned it to the OC.

 

So don't give up, it ain't over yet by a long way.

Edited September 19, 2008 by fiftypence
grammar

[splosher]

I completely ignored the SD, after about 21 days they sent me a letter which basically said they 'we're in a position to bankrupt you'. At that point I CCA'd Connaught. Within 48 hours they replied saying they had closed the file and returned it to the OC.

 

So don't give up, it ain't over yet by a long way.

 

Sorted, i'll leave this 'til next week so i can think straight and then look at it again.

 

As for the clerk i spoke to - she worked at the specific part of the county court where i'd have to put the forms in and she told me i couldn't hand in the forms if i admitted the debt was mine. I know you're all telling me this can't happen, but it has happened - i explained to her that internet forums have explained what to do, how to fill in the forms, etc, but she was adamant that if i turned-up with the 6.4 and 6.5 forms completed without a "proper" excuse for setting aside, then they wouldn't accept the forms.

 

This is the whole reason i'm in this c**p to begin with - being unable to get things sorted out, even after advice.

On top of this, in the last 2 months i've had a seizure of earnings for an old Council Tax bill from 4 years ago, even though i'm currently paying off other Council Tax debts and they know where i am, they never contacted me via letter and instead just sent it through court to seize my wages.

Then, on top of this, last Thursday i come home and have a letter from Bristow and Sutor, who have been around to take my stuff for ANOTHER Council Tax claim which has gone directly to court without informing me from 9 years ago!??! Absolutely f**king sick and tired of this bulls**t!

 

Only 3 years ago, i had a will settlement and so went to the Council offices and asked for all outstanding Council Tax bills, then settled them: it cost me in the region of £4000 and i thought that was that but no, they'll still find a way of doing you over!

[fiftypence]

Well it looks like the ball is in Capquests court, lets see what they do next.

 

They will do one of two things, the first is proceed to bankruptcy but it could be risky for them as this will cost them about £600 up front in court fees alone let alone any solicitors costs for the filings, if they don't know anything about your financial circumstances this could be a gamble for them as you may not have a penny to your name and their costs will be lost. My bet is they will write another letter like the one I got saying they can now bankrupt you hoping this will scare you into making payment.

 

If they send this BR threat letter send them a CCA but post up the letter they send you as you may need to amend the template CCA letter like I had to.

[splosher]

*UPDATE 13th MARCH 2010*

 

Well, I can't believe what's happened now!

 

It is now 18 months since I opened this thread originally and I had not heard anything regarding the enforced bankruptcy that Cap Quest had threatened me with back in september, 2008. However, this morning I've had the following letter delivered to my address stating that they have no alternative but to proceed with the enforced bankruptcy. Now though, I'm 100% sure that it has been over 6 years since I paid anything to RBS - have never paid any debt collecting agency a penny either - so can I send them a letter claiming the original amount is statute barred now?

 

As usual, any help from anybody here more than appreciated.

 

Here's the letter: