Nottsdave/Capquest-Court date soon.

[pt2537]

depends on whose doing it, if your represented or not etc

[Nottsdave]

PT

 

Not represented. so I guess its a no no

[Nottsdave]

Hi Andyorch,

 

On Wed I received the witness statements from Capquest 7 days before the court date. This was after the Judge ordered that they must serve the documents 35 days before the hearing......can I do anything about this ?

The witness statement says,

 

That they purchased the debt in 2006,and that a copy of the agreement and t&cs are in the bundle.....The agreement is a application form with no prescribed terms, the T&Cs are about 6 pages long.

 

Account statements

 

It also states that no Default Notice can be provided allthough they state it was posted first class on 20 Jan 2005 and the absence of this is not crucial to the claim ?

 

Then a copy judgement Rankine case due to my request for documents ?

 

It also says that because I have made payments I have admitted the debt.

 

 

Please give me some help on what to do with all this

 

What do you think I need to do and what will my response be when I get to court ?

[AndyOrch]

Hi Dave

 

Where is the Claimants Witness Statement?Pont me to the post or repost.

Where is the N.O.A?

 

 

Regards

 

Andy

[Nottsdave]

Hi Andy

 

Please bear with me Im sat next to a broken scanner but I have typed out word for word the important points

 

1 Name of person making the statement ,Employed by and the facts are true etc

 

2 Thoughout will make ref to bundle

 

3 In or about Dec 2006 the claimant purchased some debts from Saisburys Bank plc one of which was a Credit Agreement (the agreement) with the defendant with a outstanding balance of ******* . A copy of the agreement including its T&Cs is shown in bundle

 

4 The agreement is dated 13 Nov 2003 and is regulated by the CCA 1974

 

5 Notice of assignment was given to the defendant by letter dated 30 Dec 2006 a copy of which is shown in the bundle. Sainsburys Bank also wrote to the defendant confirming that it had sold the account to the claimant by letter dated 11 Jan 2007 a copy in bundle.

 

6 Account statements relating to the agreement covering the period 2/12/03 to 4/10/04 are in the bundle

 

7 I am unable to provide a copy of the Default Notice which was served on the defendant under section 87(1) of the CCA 1974.The claimants records show that the Default Notice was served by first class post on 20/1/2005. I would comment that the absence of a default notice is not crucial to the success of this claim. Whilst the absence of a copy of the DN meansthat the claimant has not been able to comply with the order to produce the DN and thereby prove that Sainsburys were entitiled to demand early repayment of the full amount, I refer to clause 1.4 of the T&Cs of the agreement as per bundle. That clause states that the defendant had tp pay 3% of the outstanding balance each month. The account statements exhibited in the bundle show that he has failed to do so.

By now the full balance would have become due anyway by that percentage having fallen due over the period of 34 months. If the court finds that the claimant is not entitled to claim the full balance that became due following the failure of the defendant to pay 3% per month for 34 months. Put simply as all sums under the agreement are now overdue for payment there is in fact no need for the claimant to rely on the service of a DN. It is the claimants case that the balance outstanding under the agreement is was due in full before the claim was issued.

 

 

8

The defendant contends that there are outstanding request for informationwhich preclude the claimant from pursuing this claim. I understand that our solicitors sent out copies of all documents on 16/2/09/ and again on 9/6/09 copies of these are in bundle. At item 6 in the bundle is a copy of judgement handed down by His Honour Simon Brown under claim numbers 8BM40009 to 13 in the Birmingham District Registry of the High Court on 16 May 2008. In his Judgement His Honour considered requests made under section 78 of the CCA 1974 and I would refer the court to paragraphs 13 -16 inclusive of his judgement

In the circumstances I would submit that the defendanst defence on this point must fail.

 

9

I confirm that since the claimant purchased the account the defendant has made payments amounting to £1300 . Details of these payments are shown on the staements in the bundle. I would submit by making payments the defendant has admitted the debt due to us.

 

10

 

I do not beleive that the defendant has a proper basis of defence and ask the court to grant judgement for the amount claimed

 

phew thats the WS.

[Nottsdave]

Andy

 

 

 

Reference to NOA, I cant get my scanner to work no matter what I try. I will type out the letters to give you a idea of what is said.

 

The first is from Saisburys Bank on headed paper but photocopied and dated ** Jan 07.

 

Dear Mr Notts

 

Re Sainsburys Bank

Account No ***********

 

I an writng to inform you that the above account was sold by Saisburys Bank plc to Capquest Investments LTD

This means that the effective owners of the above account are now Capquest Investments.

Capquest Investments Ltd have now appointed one of their group companies Capquest Debt Recovery Ltd tp manage your account on their behalf. All contact regarding this account should now be directed to Capquest Debt Recovery Ltd on Telephone 0870 0843535.

 

Correspondence address blab blah blah

 

I confirm that the amount outstanding on your account as at Oct 06 was blah blah blah.

 

 

yours

 

D, Head (joke)

 

The second (again photocopied) is from capquest and says,

 

Dear Notts

 

This correspondence is to inform you that your account ref number ********* together with others (?) has been sold to capquest Investments who have appointed capquest Debt Recovery as one of their companies to manage your account in all matters relating to collection and litigation.

It is our aim to ensure that a suitable payment plan is agreed and maintained . Our experienced team of negotiators are here to assist you in finding a plan that will clear your indebtedness without the need for legal action.

This matter will not go away you need to deal with this now by calling us on 0870 0843535.

If a satisfactory payment programme is not established and you fail to comply with our request to contact this firm , we will not hesitate to utilise the legal sytem to its full extent.

If you do not make contact by the Jan 07 your account will be passed onto our solicitors HL Legal.

Legal action will increase the amount you owe and may have a detremental effect on your credit worthiness.

 

No contact will mean further action

 

How to pay:

Payment by debit or Visa credit card call 0870 0843535 (*2% charge will be made on Visa Credit Crad payments)

 

All payments by cheque or postal order to be sent to PO Box 396 Fleet , Hants GU51 2WZ.

Quoting Ref number blah blah blah

 

yours sincerly

 

 

Notts

[AndyOrch]

Hi Andy

 

Please bear with me Im sat next to a broken scanner but I have typed out word for word the important points

 

1 Name of person making the statement ,Employed by and the facts are true etc

 

2 Thoughout will make ref to bundle

 

3 In or about is there no date on the NoA?Dec 2006 the claimant purchased some debts from Saisburys Bank plc one of which was a Credit Agreement (the agreement) Account Number referred to? with the defendant with a outstanding balance of ******* . A copy of the agreement including its T&Cs Current I summise is shown in bundle

 

4 The agreement is dated 13 Nov 2003 and is regulated by the CCA 1974

but does not contain any of the perscribed terms and therefore unenforcable

 

5 Notice of assignment was given to the defendant by letter dated 30 Dec 2006 a copy of which is shown in the bundle. Sainsburys Bank also wrote to the defendant confirming that it had sold the account to the claimant by letter dated 11 Jan 2007 a copy in bundle.Need to see this Dave

 

6 Account statements relating to the agreement covering the period 2/12/03 to 4/10/04 are in the bundle

 

7 I am unable to provide a copy of the Default Notice :Dwhich was served on the defendant under section 87(1) of the CCA 1974.The claimants records show that the Default Notice was served by first class post on 20/1/2005. I would comment that the absence of a default notice is not crucial to the success of this claim.I would Whilst the absence of a copy of the DN meansthat the claimant has not been able to comply with the order to produce the DN therfore you application for strike out should be awarded and thereby prove that Sainsburys were entitiled to demand early repayment of the full amount,Oh dear I refer to clause 1.4 of the T&Cs of the agreement as per bundle. That clause states that the defendant had tp pay 3% of the outstanding balance each month. The account statements exhibited in the bundle show that he has failed to do so.Why was the account in dispute?

By now the full balance would have become due anyway by that percentage having fallen due over the period of 34 months. If the court finds that the claimant is not entitled to claim the full balance They should that became due following the failure of the defendant to pay 3% per month for 34 months.Correct if you cant produce the DN Put simply as all sums under the agreement are now overdue for payment there is in fact no need for the claimant to rely on the service of a DN.So why do you keep referring to it It is the claimants case that the balance outstanding under the agreement is was due in full before the claim was issued.Not read all your thread properly dave but if you had made a request under Sec 78 for your agreement and the claimant failed or the account was in dispute anyway for whatever reason then the account should not have been assigned nor Litigation commenced by the new owner

 

 

8

The defendant contends that there are outstanding request for informationwhich preclude the claimant from pursuing this claim.This refer to my comments above? I understand that our solicitors sent out copies of all documents on 16/2/09/ and again on 9/6/09 copies of these are in bundle.I summise the application form At item 6 in the bundle is a copy of judgement handed down by His Honour Simon Brown under claim numbers 8BM40009 to 13 in the Birmingham District Registry of the High Court on 16 May 2008. In his Judgement His Honour considered requests made under section 78 of the CCA 1974 and I would refer the court to paragraphs 13 -16 inclusive of his judgement Rankin by any chance?

In the circumstances I would submit that the defendanst defence on this point must fail.

 

9

I confirm that since the claimant purchased the account the defendant has made payments amounting to £1300 . Details of these payments are shown on the staements in the bundle. I would submit by making payments the defendant has admitted the debt due to us.Mmmmmm not ness an addmission

 

10

 

I do not beleive that the defendant has a proper basis of defence Consider my above points and ask the court to grant judgement for the amount claimed

 

phew thats the WS.

 

Ok Dave I have highlighted my comments in red, the Witness admissions to why they cant succeed in orange.The above is your skeleton argument.

You will need to have all your papertrail in order to reflect the above and relevent case laws also.You must attend next week I know it appears daunting but this is really what the Claimant is depending on.Their case is weak by their own admissions and are hoping that you will bottle at the final hurdle.Take time to gather the above and reherse your argument.It takes courage to challenge these organisations I appreciate but if you stand up to them and raise an argument then there is nothing stopping you from doing it in front of a judge.They really are just normal human beings and if you get a good one on the day even better.

If however you do feel intimidated imagine them sat on the loo when you talk to them, now theres a sight for sore eyes:D

 

Regards

 

Andy

[AndyOrch]

Thanks for the NoAs Dave

 

Points to consider:-

 

Is Caps dated and is there a balance showing?

Are the account numbers the same?

Are the balances the same?

Are there penalty charges in Sains balance?

Are both addressed fully inc postcodes?

 

 

Andy

[Nottsdave]

Andy,

 

Yes to all, apart from penalty charges in Sains balance? not sure it doesnt show any penalty charges

 

Do you reckon you could help me put together a skeleton arguement ?

 

 

Notts

Edited June 26, 2009 by Nottsdave

[AndyOrch]

Andy,

 

Yes to all, apart from penalty charges in Sains balance? not sure it doesnt show any penalty charges

 

It wont you need to check your statements pre Capquest ie late payment/ overlimit / collection charges re assignment etc

 

Notts

 

Regards

 

Andy

[Nottsdave]

ok

 

There are 3 late payment charges of £25 each

 

Notts

[AndyOrch]

Ok so not much there then.Just looking back to the start of your thread you state that this was much a case of buried head sydrome hoping that it would go away.Have you at anytime request, pre litigation a copy of tour CCA 1974 from Sains?

With hardly any penalty charges or if you have never requested your CCA then i am at a loss to what the dispute is about.If you were struggling financially have you retained letters requesting help from the Claimant?

Lets presume that next week the Claimant does in fact get Judgement then you will be allowed to settle within 28 days of the judgement therefore escaping the CCJ.If however you are genually struggling financially then you will be allowed to make payments in instalments but with a CCJ.This will remain on your files for 6 years

I truley hope Dave the above does not happen and luckly if you are prepared to argue the points I have outlined then there is a chance that the claim may get thrown out and judgement found in your favour.Being LiP you will not be expected to know all the legal process but you will need to demonstrate a justified reason to witholding payment to the Claimants. ie genuine dispute etc.

Looking at your case fom the outside I would argue the above points and refrain from discussing why you stopped payment.

I am afraid I have little else to advise Dave, however i wish you well for next week and hope it concludes in a mutual acceptable conclusion.

 

Regards

 

Andy

Edited June 26, 2009 by Andyorch

[Nottsdave]

Hi Andy

 

Have you at anytime request, pre litigation a copy of tour CCA 1974 from Sains? No i only requested the Agreement once the claim was issued.

With hardly any penalty charges or if you have never requested your CCA then i am at a loss to what the dispute is about.The dispute is around the agreement being unenforeable.

I may appear to be sounding a bit dumb with all this but my understanding was that if they could not provide a Agreement with the prescribed terms then it couldnt be enforced..... is this not the case ?

 

Notts

[AndyOrch]

Ok Dave

 

So you will have to avoid the history /build up to this claim and steer your argument from your Sec 78 Request,their response and what you have been sent.Sainsburys are completly clear from this and the argument is with Capquest.

A couple of points here:-

When you submitted your defence was Capquest in Default of your request or had they complied?

Its not unsual for the Claimant to state the account had already been defaulted when the request was made and therefore no valid reason in you requesting such.Ignore this and proceed im not aware of any case laws that state you cant request a sec 77/78 once litigation has commenced.

 

You will have to be prepared to argue the virtues of the CCA 1974 and as such would suggest you savvy up on the relevent laws.

Concentrate and make the crux of your argument the agreement along with the the absence of the DN

No you are not being dumb, in theory an unexecuted agreement is not enforcable(without the Courts permission) but you are going to have to know your reasoning and facts ie perscribed terms ,Credit Consumer Act etc

and hope that the DJ who is dealing with your case is just as savvy also.

 

Regards

 

Andy

Edited June 26, 2009 by Andyorch
addition

[Nottsdave]

Andy

 

CCA request 6.12.08

CPR 31.14 4.12.09

Defence 29.12.08

 

Notts

[AndyOrch]

Andy

 

CCA request 6.12.08 and they compled by what date?

CPR 31.14 4.12.09 They partially complied and you requested a strike out not using the N244.They admit in their WS that they have been unable to compy with the DJ Order of ......

Defence 29.12.08 had Capquest complied with your Sec 78 request?

 

Notts

 

 

Andy

[Nottsdave]

Andy

 

CCA request - No response

CPR-31.14 16TH Feb 2009 just statements and the application form

Defence no they had not complied with Sec 78 request

 

Notts

[AndyOrch]

Andy

 

CCA request - No response Therefore in default of your request

CPR-31.14 16TH Feb 2009 just statements and the application form So the so called agreement /application was complied with in respose to your CPR 31.14 request

Defence no they had not complied with Sec 78 request i see they replied with it on the 16th Feb 09 after you had submitted your Defence on the 29th Dec 08

 

Notts

 

Ok David that clarifies that, but you need to remember the chain of events next week because they were in default at the time of your Defence submission.So in response to your request you can trash the WS.They may argue that after their response to your CPR 31.14 you never sought to amend your defence you will maintain that the response was insufficient (ie Application Form unperscibed/absent DN) and remained uncomplied.Hence your application (not on the N244 ) to strike out because of non complience with the DJ order dated ....... remeber all the details and put it down in timeline so you can refer to it next week.

 

I trust the above helps

 

Andy

[Nottsdave]

Andy

 

You have helped me no end, you have given me some clarity and for that Im very grateful.

I will get into the detail over the next couple of days, if you dont mind I might have to ask the odd question before next Wed.

 

Thanks once again, Im off to work now.

 

Notts

[AndyOrch]

No problem Dave just post if you are unsure.Im not on much at weekend but will recieve email notification and will keep my eye on your thread

 

 

Regards

 

Andy

 

PS dont let this consume you.They have abolished execution

[Nottsdave]

Andy

 

In post 357 (point 8 ) you mention the Rankine case..... what bearing will this have on my case and how do I respond to this ?

 

 

Notts

Edited June 29, 2009 by Nottsdave

[r&b]

hi Notts,

Shakey and IGNM get to a few points may be worth considering post 313-322 here

:

http://www.consumeractiongroup.co.uk/forum/legal-issues/144119-hfo-court-claim-16.html

 

added: u might wanna keep an eye out here too:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/206480-rankine-court-appeal.html

Edited June 29, 2009 by r&b
added

[Nottsdave]

Hi

 

What does your skeleton arguement need to contain, is it just your main issues or does it have to be detailed quoting law etc.

And do you have to give a copy to the other side ?

 

Notts

[AndyOrch]

Hi

 

What does your skeleton arguement need to contain, is it just your main issues or does it have to be detailed quoting law etc.

And do you have to give a copy to the other side ?

 

Notts

 

Hi Dave I trust you are well and ready to commence battle;)

 

Skeleton main issue and any refs to case law which you will have seperate but not included.

Nope no copy but take 3 and be prepared

 

Regards

 

Andy

[Nottsdave]

Can someone quickly explain in laymans terms what the para below actually means

The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

Notts