Cap One/Cap Quest/ SD & Court Date **WON**

[surfaceagentx20]

Q1. Read this thread about the duties of the creditor concerning the service of SDs.

 

Q2. If you believe the CCA as produced to you is unenforceable because it wa improperly executed, point this out to the Judge. You haven't alleged improper execution but have a go all the same.

 

Q3. DN? No. Assignment? The SD should mention the right to sue has vbeen acquired by assignment.

 

Q4. [1] Yes, and [2] don't throw them at Capquest. A District Judge will give you two bonus points, one for each.

 

Q5. Yes. See answer to Q4.

 

Q6. Yes.

 

Q7. If the SD is set aside on grounds that it is statute barred that should see an end to all future prosecutions in relation to this debt. If they send another SD, just go through the same process and refer to the earlier order setting the SD aside as statute barred.

 

Good luck.

 

x20

[snooziesuzie]

Thanks VERY much for your reply surfaceagent - I REALLY appreciate the help! I think the nerves are beginning to kick in as I try and get everything ready! xxx

[snooziesuzie]

My Defence In Response To

The Statutory Demanded Posted By Capqquest 29th July ‘08

 

 

I believe this alleged debt is statue barred and have clearly stated this to Capquest (see page 5 dated 6th Aug). I believe the last payment was made in 2000/01.

 

I believe the alleged debt has not been verified, validated, substantiated or proved by either Capquest or Capital One.

 

I am completely incensed by this action as nothing has been served on me, just an frivolous demand sent by unrecorded post as opposed to it being sent by recorded post which I believe is the minimum requirement. (see pages 2 - 4 dated 29th July)

 

Capquest & Capital One have provided me with NO *enforceable credit card agreement

Capquest & Capital One have provided me with NO notice of assignment

Capquest & Capital One have provided me with NO default notice

Capquest & Capital One have provided me with NO monthly statements

Capquest & Capital One have provided me with NO breakdown of charges etc

 

* I believe the cca is unenforceable because it was improperly executed. There were NO terms and conditions attached to where I signed the original agreement on 26th May 2000. Since then, on receiving my Subject Access Request, Capital One have forwarded the CURRENT terms and conditions (dated 20.01.04) which, in my opinion, is both unlawful and deceitful. (see pages 30 -39 dated 16th Sept)

 

I have tried to contact the person named on the statutory demand, but when I telephoned Capquest their agent refused to put me through (to Johanna O’Keefe). Also my partner rang to discuss this matter on my behalf, with my full authorisation, but again Capquest refused to discuss the matter with him. I find their behaviour to be obstructive, threatening, and intimidating. Even when Capquest knew this matter was disputed (and had been scheduled for a court hearing), they continued to demand payment from me with the threat of further action if I didn’t comply by the 22nd September ‘08 (see page 26 dated 13th Sept)

 

 

Capquest has not given me any indication that they are not wanting to continue this action despite me pointing out to them numerous times that the alleged debt was in dispute and statue barred.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.

 

 

As nothing has been served by Capquest I believe this to be an abuse of process under the Insolvency Laws. I can only assume that this action by Capquest is both UNLAWFUL and HIGHLY VEXATIOUS. Therefore I would respectfully ask you, the Judge, to make a judgement confirming that this case is (1) statue barred and (2) the cca is unenforceable.

 

Finally, I would respectfully request that the court imposes suitable sanctions on Capquest for their vexatious litigation which is considered an abuse of the judicial process.

 

 

Is this ok to take into court and give a copy to the judge?????

 

Any comments/suggestions much appreciated as I only have tomorrow to get this right

 

thanks again

suzie x x x

 

[42man]

Good work Suz........!!! get those costs !!! I don't think you will get the judge to say the CCA is not enforceable....you would need to do this in a separate action. He will only be concentrating and be allowed to cover the stat demand issues. Believe me I tried this when I fought my BR petition and he couldn't do it....

 

Have they got a copy of your costs too ?....

 

FAX them to the court TODAY !!! if you haven't sent your costs in.... YOU MUST GET THEM TO THE COURT TODAY....

 

Common sense here, you have shown that the account is substanitaly disputed, CQ know this, they have not sent any notice of discontinuance, show the judge your anger at being served with this....

 

Remember this the Court's do NOT like the Insolvency service used as a debt collection tool when a debt is totally disputed....

 

Quote the judge this piece...by Justice Warren...

 

As a lone parent 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).

[snooziesuzie]

Morning 42man - thanks for the reply!

 

I didn't know I had to get the costs to the court BEFORE the hearing!!!!???? Is it just costs you should do this with or the whole case notes I have prepared ????

 

I thought I could just take them along with me and give them to the court offical before the hearing - is this not the case??

 

I'm in Ireland at the moment and not returning home until tonight!! What are the implications of not getting the costs to the judge before the hearing ?

 

Any suggestions ???

 

Suzie xxx

[snooziesuzie]

OK just rang the court to find out about faxing the costs across - so going to do that as soon as I get dressed! lol

 

The court official said technically I should have sent copies of ALL documents I was going to refer to in my case into the court by now and I should have also sent a copy of everything to the other side!

 

Has anyone else done this??? Do I really want capquest to know my defence in advance just in case they decide to turn up???

[surfaceagentx20]

The position on costs is that where an applicant seeks to obtain a costs order from his opponent, particulars of those costs should be provided in a statement of costs for summary assessment not less than 24 hours prior to the hearing. The statement is in Form N260, available here. See also CPR PD 44 Para 13 here.

 

The statement should be supplied to the opponent and the court in this time window but should be presented to the court after the hearing in support of the costs application. do not fuss too much about whether the 24 hours is strictly complied with. If you can get the statement delivered by fax or email to the other side during today, the Judge is likely to be satisfied. The same goes if you simply present it to the Judge at the hearing. Filing a document at court just 24 hours prior to a hearing inevitably means the document doesn't hit the court file in time any way.

 

x20

[snooziesuzie]

Last update before the moment of truth!

 

Managed to fax costs and defence details through to the courts - shame I couldn't afford to fax capquest a copy so they will have to wait until tomorrow.

 

why is it we have to be upfront and defend our position, do all the running, go to court to get the application set down for hearing and then prepare everything when capquest, once they have posted the SD, do nothing - they don't even have to acknowledge that the case has been set down for hearing or if in fact they are even bothering to turn up before the actual time for the hearing - how is any of that right and proper and above all fair????

 

Anyway - caught a late evening flight back from Ireland ready for court tomorrow to find capquest had sent me a letter. This letter, despite all my recent communication with them and the courts, is from the litiagation department and even though they must know this alledged debt is still in dispute (why else would you have a court hearing tomorrow) they (and I quote) say "thrust that you will take this opportunity to contact us and save yourself possible expense of litigation and the problems that any litigation in which we were sucessful would possibly cause to your credit file".

 

Apparently NOW is the time to avoild the litigation process - Should I fax them and tell them to check the date on the calendar maybe ????? LOL

 

Wish me luck - will update tomorrow how it went.

Suzie xxx

[42man]

Good luck Suz....my feeling is you'll have some good news....

[snooziesuzie]

thanks for 42man! wish I had some of your positive vibes - I'm a bag of nerves and practically no sleep last night

 

Oh well - hi ho hi ho its off to court I go xx

[42man]

Be strong Suz....show your outrage and disgust to the judge that they are abusing the Insolvency service.......If by any chance that there is an opposing solicitor there, who wants to talk to you, just listen, don't say anything back in case you prejudice yourself, say you will discontinue the action if they pay your costs.....

[MONX]

Good luck for today (I dont think you will need it tho!)

 

[snooziesuzie]

Ok well Im back home in one bit after court hearing for set aside.

 

Really peed off and angry despite the judge setting is a side - am I supposed to feel elated I wonder ???? I just feel cheated and disappointed

 

Ok a run down from the beginning.

 

Got to court well early - bag of nerves but my 'mckenzie' friend did a good job of making me breath and try to relax. I looked at everyone coming in to see if anyone from capquest was there but after checking with the usher was told they hadn't come!

 

Eventually got called into see the judge. His welcoming words were:

 

"Good morning, come in but its hardly worth you sitting down"

 

Great start I thought! I tried to pass the judge the copy folder of all the documents I had photocopied but he immediately said he wouldn't need it , without even looking at it!!

 

Basically he said he was happy to have the matter set aside. He told me it didn't make any difference what title was on the SD from capquest and wether I disputed it or not. He said capquest had every right to pursue me legally to reclaim the money. He also told me that even if a cc agreement was over 6 years old it wasn't automatically statue barred if a payment had been made since then, the 6 years would start again (which I already knew anyway)! he couldn't grant the statued barred because he only had my word for it and no information from the other side!

 

Basically he tried to dismiss us then straight away - I questioned wether it was fair for capquest to use the legal system to aid debt collection and did he realise the stress it caused - but he really wasn't at ALL interested. I asked him what I should do next with regard to disputing this debt and he said capquest will probably press on with getting the money back and so I should think about a bancruptcy hearing!

 

As he was trying to get us out of the way I asked him if he would award us costs - I'd done the normal 15hours research etc, cost of photocoping for him and capquest (total waste of time) cost of postage and postal orders for CCA and SAR, faxes, flight home early (£17) etc - total was £177. He had no copy of my costs despite me faxing them yesterday and the usher telling me earlier they were on my file. I passed him another copy. He said there was NO WAY he could sanction 15 hours research - I told him straight away it was WAY more than the 15 hours and would have been much more if I had got a solicitor instead of representing myself. He said the most he would give is £25.... yipppeeeeeee.

 

So there we go - nothing changed really in effect because capquest will still be back at me (letter yesterday saying they are starting proceedings again). SO really they can act above the law and cause misery and stress and hardship when judges like the one I had this morning let them away with it, can't they??

 

Sorry for the long vent -full of mixed emotions - mainly frustration, anger, disappointment - I hate injustice of any kind and the way people like capquest cause so much stress to other people without even bothering to stay within the law really gets my goat!

 

I guess some people would see this as a victory - but I can't see it changing much now the judge didn't upheld it being statue barred. Not sure what to do next - just know my health will not allow me to go through all this stress again even if I believe the cca is unenforceable.

 

Any suggestions what I should do now, bar have a very big drink and a few painkillers for the whopping headache I have?

 

Suzie xxx

[tiglet]

Well sweetie, I wouldn't drink AND have painkillers - not unless you have a stomach pump handy!

 

In all seriousness, you need to calm yourself down and think about this logically. OK, your judge was a bit of an arse. Well, some judges are - hey ho, that's the way of the world. However, his job wasn't to uphold whether it was statute barred or not, merely whether you had sufficient grounds for a set aside and to grant it, if so, or refuse it, if not.

 

Capquest may then decide to go down the CCJ route or other - as long as you defend it then they WILL have to prove it isn't statute barred. Another judge will then make that decision and we'll all help you along the way.

 

Costs - well, that is a disappointment and I think it was very unfair of the judge, however, that was his call to make and I don't think there's anything you can do anything about it, so you may well have to live with it.

 

Look at the positives - capquest can't make you bankrupt and they DO have to pay you something. Getting the SD set aside was what you went to court for and it is what you got. Well done you - you achieved that, despite having a judge who clearly didn't want to grant it to you.

[42man]

Demonstrates once again that judges vary so much, one day a judge vents his spleen at a DCA and awards £400 and then to this.....but it still is a victory as it was set aside.....Capquest can try again....send them the staute barred letter here letter 'M' by recorded delivery - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html ....if they continue to harrass take them to court....at the same time make sure they pay the costs !! and report them to the OFT, TS etc...

 

OFT say this.... - 2.14 (b)

• 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.

[MONX]

Congratulations at getting the SD set aside and I am really sorry the Judge you got was a total prxtt!

 

As 42man and Tiglet say you got the SD set aside and you did get some costs - although this isn't the sum you requested just imagine the look on their face when they have to write the cheque....If you were like me, it was never about the money, it was about showing them that they hadnt beaten me, the sum of money they have to pay out is abitrary as it is a victory all the same.

 

I think you should use the £25 to get a moderately priced bottle of champers and toast to the success of getting your SD set aside!

[snooziesuzie]

Thanks everyone for the congrats and well wishes! Sorry if I sounded offish in my last post - I think all the emotion, stress and sleepless nights caught up straight after the hearing

 

I was more annoyed with the judges lack of interest than him not granting high costs against capquest. I was both annoyed and releived capquest didn't turn up. It never was about the money for me. I've have had to invest plenty of time and money into making a defence for the set aside hearing when capquest get away with the price of a 2nd class stamp and then my £25 costs ------ just shows how unfair this whole system is when its used as a debt collection tool primarily!

 

Anyway - no more whinging on that - time to look forward. So I'm sat here wondering what do I do next with regard to this set aside....

 

Do I just forget the whole thing and hope capquest just go away now? (hardly likely I feel considering they are still sending me letters threatening legal action) -

 

Do I still try and get the correct information from Cap One and Capquest depite them both still being non compliant in case I need it in the future?

 

I certainly want to make a complaint about capquests behaviour in trying to collect on this debt - where do I start on that (trading standards etc ?) and what do I need to highlight in this letter (do I send capquest a copy)?

 

I very much want to write a complaints letter to capquest pointing out that despite them writing to me threatening legal action on Monday, Ive already been to court and the judge set it aside so bog off harrassing me! Any suggestions on how I word that politely?

 

And finally (sorry!) - in real terms what does a set aside really mean? I couldn't get it set aside as being statued barred because capquest didn't bother their arse showing up and so the judge wouldn't consider that so will capquest try again do you think? Do they go down the same route again or do they try another track like a ccj? (again I have no idea whats appliable and how that works or if its an option for them to try).

 

I'm moving to Southern Ireland to live in 4 weeks and was hoping to have an end to all this crap before I went but I can see this isn't really an end at all - I'm renting out my house to some of my family while im gone. I will have the same phone number and obviously some of my mail will come here before its posted on to me in Ireland - am I better telling capquest my new address in Ireland (rented) or say nothing?

 

Anyway as always I really appreciate all your help and advice. Thank you everyone, but especially 42man for all your support. I will be sending the £25 costs from capquest to the CAG libel fund - seems fitting somehow

 

Kind regards

Suzie xxx

[snooziesuzie]

Just to update

 

Received cheque for £25 from capquest on tuesday 21st oct via special delivery (this was just within the 14days)

 

Capquest have since the court hearig have sent two more letters demanding payment and threatening legal action ZZZZZzzzzzzzzzzzz

 

I have requested a copy of their complaints proceedure and am writing letters of complaint to all and sundry!

 

Will keep you posted on any other contact.

 

Kind regards

Suzie xxx

[42man]

Suz....if they start threatening again, start a new thread in the DCA section....(keep us posted)

[noomill060]

Here ya go!

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/116591-1st-credit-stat-demand.html

[andyaddick]

Suzi ,

All that gliters isnt gold, I was sucessful with a Set Aside though what you really want is a Statue Barred, which I lost , I ws then served a CCJ which in turn evolved into a charging order on my property , its not the end of the world, just means when i sell my house I have to pay up the debt with any profit made.

 

Regards

 

Andy

[jayne123]

Hi have my court hearing on 23 July 2010 to have my case againsty capquest set aside for a debt from 2001. I looked into my credit file and have no ccj for this. I need to know what I should take to court , should I read and print everything? What will the Judge expect of me? Also what costs should I submit - which I believe needs to be faxed to the court and capuest the day before my hearing? I recieved my court date last thursday and as of yet have received nothing form Capquest about the hearing is that normal? I have no paperwork regarding the original loan from 2001 only the SD that I received 2 months ago - will that go against me? Should I contact Capquest and request the original agreement form the creditor RBS? Please help as panicking a bit now!! thanks you Jayne

[42man]

Jayne....please try and relax, you go to court and demonstrate to the judge just what a waste of time this is, an abuse of the insolvency service, show him/her last years OFT's ruling against another debt collection agency which you can find here - OFT imposes requirements on 1st Credit over debt collection practices - The Office of Fair Trading As for your costs then have a look here and remember your costs have to be in the court file 24 hours before the hearing....do NOT be a soft target...this is a pure abuse of the insolvency service... - http://www.consumeractiongroup.co.uk/forum/legal-issues/207135-stat-demand-arrow-global-3.html

[jayne123]

Thank you - I have saved those and will print them off ready for my day in court!! I will fax the costs over 24 hours in advance too!! Is there anything else the Judge may throw at me - how do I justify my time I will claim for costs if they ask me a question and I do not know the answer?? How long do the cases take in court? Is it normal not to hear from Capquest prior to the hearing? thanks so much

[42man]

I have never heard of Capquest turning up in court to answer a set aside case. This is why it is an abuse of the process, they are not serious...and I URGE you to report them to the OFT. Judge will dismiss it in 5 minutes....