capquest sd re littlewoods CAT DEBT - ***WON***

[chezza2409]

yesterday I received a Statutory demand from Capquest for a debt of 1500 pounds that I am sure I dont owe, it says the debt relates to an unpaid balance of sums due under credit agreement dated 31 may 1997.

 

It all started last xmas when i received a letter saying I owed this money. I called them (i know big mistake) and asked them for details of this debt as i sure I do not owe any money to this company and I would know if i had a debt of this proportion. they said they would get back to me but instead i was baraged with letters just before new year one of which was a supposed letter from littlewoods finance (letter of assignment) saying my debt had been passed to capquest on 13 jun 06 although on the SD it states date of assignment as 29 sep 06.

 

I then heard nothing till 8 september 2008, it was a letter stating that despite numerous attempts to assist you (blah blah blah!!) I hadnt heard anything since jan 08 and thought that it had been an error and it wasnt mine.

 

It also states that it is there intention to issue a stat dem on or around 19 sept 08, it was then that a friend introduced me to your forum and I see that a load of people have had problems with this company.

 

Anyway, sorry for bumbling but yesterday I received the stat demand and after looking through some of the comments on here I contacted my local court for papers for to have the sd set aside and have received these papers this morning.

 

I would very much appreciate it if someone could give me some guidance on how to fill these papers in as they seem rather mind boggling and also what do I do with capquest should I write them and say I need to know what this debt is for as I really have no recollection of owing these people money.

 

please post back asap as I dont want to miss any deadlines for getting these papers to court

 

thanks

[nevos]

Hi, welcome: You need to send a CCA request like this one:-

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY OR ANY COMPANY YOU CLAIM TO REPRESENT

 

Re: Account no: xxxxxxxx

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77(6) will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

This came from another thread formulated by some good helpers, there is one in the library also.

 

Good luck and remember dont sign it and send recorded delivery..

[42man]

Hi Chezza...please try and relax....

 

Firstly a few questions ?

 

How was the demand delivered ? if it was by post please keep the envelope...

How long is it since you made a payment or acknowledged this debt ?

 

First thing to do is send letter 'N' from here - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html send this letter by recorded / guaranteed delivery (keep a copy of the letter and the rec delivery slip safe), enclose a postal order for £1 and do NOT HAND SIGN the letter.

 

If you want to know why the agreement is important read here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164270-debt-wescot-lowell-unsecured.html

 

You have got 18 days to submit your 6.4 (set aside form) and 6.5 (affadavit) to the court.

 

Once you have filled out the forms (you can find them electronically here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

You need to take them along to the court and they will 'swear in' your affadavit this is usually free, (a solicitor can do it but it usually costs £5 - or if your nearest court is central London they charge £12).....

 

Have a look at these threads....

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/157201-statutory-demand-capquest-425-a.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/103839-cca-1st-credit-connaught.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/156970-omg-connaught-first-credit.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/161411-off-court-within-week.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/151149-help-pls-process-sd.html

 

If you aren't sure what to write or need some help please shout....

[42man]

Or send the letter that Nevos has kindly posted above - do this ASAP...

[chezza2409]

thanks nevos. Do i keep a copy of this and do i send it to capquest or littlewoods or both?? sorry for the ignorance but this is all a blur to me.

[chezza2409]

thanks 42ndman, I received the sd by first class post yesterday. I did not know of anything about this debt and have never acknowledged or payed any monies to it. The only thing I did last year was to call and ask what it was in relation to, they said they would look into it and send me the info. Then I got the threatening letter in sept and the sd yesterday.

 

will that link show me how to fill in the forms to have the sd set aside?

[42man]

Any chance that the debt is statute barred Chezza ?

[chezza2409]

i dont know, on the sd it says under the "particulars of debt"

 

 

The debt relates to the unpaid balance of sums due under credit agreement dated 31 may 97 made between mrs xxxxx xxxxx and littlewoods finance company in respect of a littlewoods mail order finance number xxxx The agreement terminated upon the failure of mrs xxxx xxxxx to comply with the terms of the agreement and or a statutory notice of default served by littlewoods.

 

the rights and duties of littlewoods passed to the creditor pursuant to an assignment dated 29 sep 06

 

the total amound due as at the date of this demand is 1494.39 which includes interest of 0.00 which has accrued since the assignment of the debt.

 

So is the debt from 97 or 06 im not sure?????

[42man]

It will be from the last time you made a payment towards this particular debt....OR you got on the phone saying...yes that's mine, the cheque is in the post...

[42man]

it makes no difference when it was assigned or when it was defaulted...if you haven't made a payment in 6 years towards it or acknowledged it then it will be statute barred

[42man]

When you send off for the CCA request also put letter 'M' from here into the envelope... - and at the top of the letter write I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY - letter 'M' - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html

[chezza2409]

ive never done any of those, i did ring them asking what the debt was for and that was the only communication ive ever had with them. You see I shouldnt have any debt I went away to usa in 2002 and came back in 2004 and since then i have had a few problems with people saying i owe them money, and i wonder if someone used my details whilst i was away. But capquest wont tell me any details of this said debt, what can i do?

[chezza2409]

so, on the set aside docs should i put that i do not admit the debt or that i believe it may be statute barred?

[42man]

OK, send the CCA request off with the statute barred letter inside too ASAP....

 

I'll help you fill out the affadavit, but I can't do it until Monday if that is ok... in the meantime have a good read of the other threads on stat demands...

[42man]

Another good thread here too...

 

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

[chezza2409]

yeah that would be great 42nd man i appreciate it. I will look through other threads over weekend. I dont have a printer so would i be able to send these letters by written hand or would you say i would be better with them typed. If i can send them written then i can get them done tonight. You see i suffer from manic depression and anxiety attacks so dont go out all that much which makes things even more difficult..

 

thanks again

[42man]

Yes you can hand write them no problem....have a good read of the threads, this will give you a good feel for the defence....don't forget to send out the letters by RECORDED...ASAP...and send a £1 postal order with the CCA request and the stat barred letter. You will need to get the letters copied and the recorded delivery slip copied also....3 copies of each....

[saintly_1]

Do you know anyone with a printer you could use ?

 

It would make the filling in of the required forms for the affidavit much simpler .... however you should be able to get them from your local county court

 

What you need is forms 6.4 and 6.5 from here Forms

[chezza2409]

hi saintly,

 

no ive not lived here long and dont really know anyone and as i said i dont go out much due to my illness. i did get the courts to send me the docs but they only sent me 6.4 in triplicate. no 6.5. If i write the letters to capquest and photocopy them for myself will that be ok?

[42man]

Chezza, write this down in rough first before finalising it on the affadavit.

 

The defendant totally disputes the debt.

 

The alleged creditor has provided no proof that the debt is barred by the Statute Of Limitations Act 1980

 

The alleged creditor has provided no consumer credit agreement with the prescribed terms.

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account.

 

The alleged creditor has not provided any notices of assignment.

 

Under section 78 (1) of the Consumer Credit Act a formal written request for any true copies of signed consumer credit agreements was sent to Capquest. via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

 

I believe there are no properly executed signed Consumer Credit Agreements (as the account does not exist),

 

SECTION 78 (1) CONSUMER CREDIT ACT 1974

 

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

(a) the state of the account, and

 

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and..

 

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

The Consumer Credit Act in section 78(6) States that

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement;

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - For the avoidance of doubt the 2006 Consumer Credit Act does not change the above legislation……

 

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007. (cont)

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007)

 

REFERENCE TO CASE LAW

 

• As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
  

• 
  ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
  

 

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

 

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy petition was issued.

DEFAULT NOTICE

 

 

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

 

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

The alleged creditor has not 'served' anything on me, but simply posted a demand by first class - I believe that this is a frivolous attempt at scaring me into paying and therefore an abuse of the process.

 

I refer to:

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

 

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

 

As a lone parent/low income earner/low income family 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).

 

Edited December 10, 2009 by 42man

[42man]

Chezza...apologies for the length, but I want to make sure you have a good defence....this goes on your affadavit...read it through and edit as required (it will require some dates to go in it too...)

[42man]

Ignore my advice to write in rough first !!!

[42man]

Chezza what part of the country are you in ? as I MAY be able to attend with you depending on the dates...

[chezza2409]

hi again 42nd, wow!!! Do I have to write all that down and do i put it on 6.4 or 6.5. I may be able to get a printer, my health visitor is trying to arrange one for the weekend for me.

[chezza2409]

hi 42nd, i live in leeds