Capquest SD - *** WON + COSTS ***

[doony26]

Hi all

 

Ok, I recieved an SD from Capquest a couple of weeks ago. It's for an Egg account, going back to dec02. Claiming for 11k, 3k of which is interest Capquest have added since buying the debt in May 06. Now, I am 99.9% sure this is Statute Barred, as no payment has been made in that time, or the debt been achknowledged in any way.

 

Anyway, I wrote a cca letter today and also stating the debt is statute barred, and will post it in the morning. And I have started filling out the set aside forms from the court. Which is where I need some help.. 6.4 is ok, thats easy enough. It's 6.5 I'm having trouble with, as having read the many threads on here (very helpful and informative) I'm a little confused as to what I should write on my affidavit and how it should be worded.

 

A little info...The only correspondance I have had from Capquest if the SD. It arrived via second class post. The particulars of the SD make reference to a credit agreement (this can be used in my defence?).. and there's some 3k of charges on there. I have tried calling the illusive Miss O'keefe, and seems to be unavailable.

 

Anyway.. the only thing I have left to do is fill out 6.5.. which.. havig spent so much time reading on here.. suddenly realised it has to be in the court by Friday..

 

So what lines of defence can I put on my affidavit .. aside from the statute barred? (with the slim chance it is just bordering)

 

Any help would be much appreciated

[cerberusalert]

Has the SD been served correctly?

[sorrylittlelot]

have you seen my post for the same question?

I received my stat demand 17th nov and only swore my papers in today lol

[doony26]

Has the SD been served correctly?

 

Well it looks official enough, and came via second class post seems the usual capquest sd confetti everyone else has been getting ..

[cerberusalert]

Did they give you the correct time frame in which to rectify the account? A statutory demand gives a person 21 days warning to pay the debt. After that the statutory demand has runs it course and it can followed by a bankruptcy petition. see Legal Issues Explained - Statutory Demand

[Oh Boy!]

Please complain to Office of Fair Trading Immediatly as they are inviting information on companys like Capquest.

 

This is your chance to resolve the SD confetti.

 

IN the meantime if the debt is statute barred fear not nothing will become of it.

[sorrylittlelot]

what would the complaint be?

[42man]

If it was me in your shoes, I would get it set aside and claim your costs back in court....and PLEASE COMPLAIN TO THE OFT....Capquest will know this is statute barred - You will find plenty of info here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/165140-received-statutory-demand-capquest.html#post1775590

[doony26]

ye, I'm in the process of filling the court forms out. I sent off a ccs request and statute barred letter to them today. But just need some help on how to word my affidavit, and other forms of defence I can use as well as the statute barred.

 

In regards to the time limit, is it 18 days from the reciept of the SD, or 18 from the date printed on the SD(it came in the post).. if it's the latter, I have to get my forms into the court by tomorrow....

Edited February 26, 2009 by doony26

[doony26]

bump

[rory32]

In regards to the time limit, is it 18 days from the reciept of the SD, or 18 from the date printed on the SD(it came in the post)..

It's 18 days from the SD being served, so from when you received it.

[doony26]

ah brilliant thanks, and thanks for the other replies. So based on that assumption, how are the courts, or Capquest, supposed to know when i recieved it. It's not a biggie, but I'd like the weekend to get the court forms correct and as strong as possible.

[rory32]

Service is deemed to occur after 2 business days (Saturdays and Sundays are not classed as business days) by first class post, so I would imagine you can add a couple more days for second class post.

[doony26]

Ah excellent thanks. I'll get it all ready for monday then, as it was dated the 10th Feb, so Monday will be plenty. Cheers

[doony26]

just read somewhere that service is deemed to have taken place 7 days after being sent by 1st class post.. is this correct? Also, does it make a difference if they have spelt my name wrong on the SD?

[42man]

Doony....although i'm not 100% I believe service is usually (although it can vary from judge to judge) deemed as 2 days after posting.....and in answer to your question about the incorrect name, unless it is RADICALLY different it won't make too much difference (although it is still worth mentioning in court).....I would also URGE you strongly to report this whole affair to the OFT too....1st Credit have had a stern ticking off about their statutroy demands and it won't be long until Capquest get the same too, so please report this situation to the OFT....

[doony26]

ah thanks.. although a bit more searching, and i found this on the government insolvency website..

 

45.98 Date of effective service

Where the demand is advertised, the time for compliance runs from when the advertisement first appears. Service is deemed to have taken place 7 days after sending by first class post. If service is effected after 4pm on a weekday or 12 noon on a Saturday, then it is effective from the following working day.

Notes: [r6.3(3)]

 

just want make sure, as 2 days, would mean i have to have it in by tomorrow, where as the above would give me till the end of the week, and would be 8 days gone after i sent the CCA. The name isn't radically different no, but just thought it was a bit stupid of them not to even spell my name right. I will mention it though. And once my set aside as been filed, i will complain to the OFT. No problems there.

[gshniben]

see my thread here http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/185549-capquest-stat-demand-set.html?highlight=capquest

i was nervous but i won and it is less nerve wracking than you think! good luck

[doony26]

Ah cheers for that.. I've read them all loads.. hence i'm nearly late putting the sd application in.. Ok so I'm gonna put the application in this afternoon.. This is what I've put on the form, does it look ok? anything else I should add/take out.. many thanks..

 

1. The alleged account is to my knowledge statute barred. No payment has been made on this account for 6 years or more.

2. The alleged creditor states that the sum is due under an agreement - no agreement has been attached to this demand. I have on 26th Febuary requested a copy of the credit agreement on the alleged account, along with a statement of account and a copy of the deed of assignment. The production of a credit agreement is a legal requirement under The Consumer Credit Act. The alleged account can only be enforced under the Act by producing a copy of the agreement, to date this has not been produced.[/font]

3. Any amount stated as owing would be disputed due to unlawful and excessive charges levied on the account.[/font]

4. I have not received any Default Notice for this account. The serving of a Default Notice before any legal action is taken is a requirement under the Act.[/font]

5. I have received no Letter before Action. I believe that Capquest are using court as a first resort. Furthermore I believe that this is an abuse of process and Capquest are vexatious in their litigation.[/font]

6. The contact person listed on the statutory demand is unavailable for contact. This makes the statutory demand unenforceable. [/font]

 

Can I print this off and attach it to the 6.5, or do I have to hand write it out?

[42man]

They don't need to provide a letter before action for a stat demand.....

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/186660-vertex-data-science-ltd-2.html#post2011939

 

Have a read of post 30 in this thread......

[42man]

The debt is totally disputed.

 

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

 

The alleged creditor has provided no statements for the duration of the account (it not being uncommon that some debts are made up entirely of excessive charges)

 

The alleged creditor has provided no notice of assignment for the debt.

 

The alleged creditor has provided no valid default notice in the prescribed format.

 

The alleged creditor has provided no deed of assignment for the debt.

 

The alleged creditor states the claim is in relation to an 'agreement' No agreement has been attached to the demand and neither have they supplied one.

 

I request the judge dismisses this claim. I also request the judge order the alleged creditor to pay my costs as litigant in person, and in light of the upset and inconvenience this has caused myself and my family, I would also order the judge to make an indemnity award in my favour. I refer to.

 

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).

[doony26]

ah brilliant.. thanks very much. so can i just print it.. or does it have to be written all out?

[42man]

You can print it onto the form 6.5 here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

[42man]

Don't forget costs need submitting 24 hours before the hearing...

[doony26]

Well.. put that into the court.. Took all of 2 minutes. Lady said I should hear something in about a week. Thanks for your help everyone.