capquest stat demand for old SkyCard Debt? *** WON + COSTS ***

[trumpetmaest]

Blo**y nightmare

 

I went in to the courtroom and the judge refused to even discuss the service of stat demand.

 

He said all he was interested in was my reasoning for believing the agreement was not enforcable.

 

He refused to even discuss defaults or procedures.

 

He said that I was not making a good case for this but also said c quest were not here. However they were not local and they had submitted a defence and counter arguement !

 

In summing up he has adjourned the case and has given me 14 days to produce a statement.

 

He then went on to say that it better be something substantial or it would not be set aside.

 

I feel like all the stuffing has been beaten out of me and I don't know where to start. Don't think I can face that again.

 

Will it still be the same judge?

 

How do I go about producing a statement?

 

Help would be appreciated

Edited July 9, 2009 by trumpetmaest
typo's

[trumpetmaest]

Bump

[UnitedFront]

Im sure 42man and co will be along shortly to halp mate

 

Sounds like you got a sh*tty Judge....it's a bit of a lottery with them!!!

 

Chin up mate anyhows

 

UF

[trumpetmaest]

I was very calm, kept calling him sir, tried to put my point across but he wasn't interested.

[diddydicky]

I was very calm, kept calling him sir, tried to put my point across but he wasn't interested.

 

sounds to me like miss whiplash didnt turn up for his early morning workout!

[trumpetmaest]

bump

[lilly white]

he ask you what.

 

OK

 

1 WAS THE DOC, YOU WHERE SENT WAS IN ONE SHEET OR TWO.

 

2 WHERE YOU GIVEN ANY OTHER DOC.

 

3 WHERE YOU GIVEN ANY DEFAULT NOTICE.

 

4 WHERE YOU GIVEN NOA

 

5 HAVE YOU SAR OC

Edited July 10, 2009 by lilly white
SPELLING NOT MY STRONG POINT

[trumpetmaest]

He went on the line that I had paid oc and had use of c card.

He did not examine any of my docs and he refused to read my argument about process lack of dn etc. He then said he was going to adjourn and I must appear again after I have submitted a written statement to the court, presented in the correct manner.

1. Agreement is posted on this thread

2. No

3. No

4. I have been given notice of bailiffs, charging order, and bankruptcy. All of which I have responded to in writing.

5. Yes at the start of 2008

Edited July 10, 2009 by trumpetmaest

[lilly white]

It May Be A Good Idea If We See AFFIDAVIT.

[trumpetmaest]

It is on this thread exactly as written

[lilly white]

Please My Apologies Where Is The Affidavit,

 

Lilly

[diddydicky]

an important aspect may be the fact that he refused to examine or look at your paperwork

 

it give the impression of a judge who has "pre judged" (pardon the pun)

[trumpetmaest]

My affidavit is below.

 

I apply for the statutory demand to be set aside as the creditor is aware the debt is in dispute, the creditor has failed to comply with its obligations under the Consumer Credit Act, and I believe that the creditor issued this statutory demand as an abuse of process intended to pressure me into paying the full amount of a disputed debt contrary to the OFT Debt Collection Guidelines.

 

The creditor has defaulted under section 78 of the Consumer Credit Act 1974 for failing to provide a copy of the alleged agreement on request within the prescribed period. Under the provisions of s78 (6), the creditor is not entitled to enforce the alleged agreement while this default continues. My request under s78 of the Consumer Credit Act 1974 was sent to Capquest, the debt collection agency who claims to be dealing with the alleged agreement and have raised the statutory demand. This request was received and signed for on the 2nd November 2007.

 

This is the text that I submitted in my avidaffit

 

 

That is what I wrote

 

Further, I believe that the amount of £8445.63 referred to in the statutory demand includes a substantial sum of unlawful penalty charges that I am also disputing.

[diddydicky]

Rule 6.4 Form 6.5

Affidavit in Support of Application to Set Aside

Statutory Demand

(a) Insert name address

and description of person

making the oath

I (a)

make oath and say as follows:

(b) Insert date 1. That on (b)

the statutory demand exhibited hereto and marked “A” came into my hands.

© Insert one of the 8

following alternatives or if

none of them are

applicable state grounds

on which you consider the

statutory demand should

be set aside

(1) “Do not admit the debt

because…” [here state

grounds] or

(2) “Admit the debt but not

that it is payable

immediately” [state

reason], or

(3) “Admit the debt as to

£ , and that this

is payable but that the

remainder is not

immediately payable. I am

prepared to pay the

amount of £

immediately” [state

reason], or

(4) “Admit the debt and

am prepared to secure or

compound for it to the

creditor’s satisfaction

by …”

[state nature of

satisfaction], or

(5) “Say that the debt is a

secured debt” [give full

details of security and its

value], or

(6) “Have a counter-claim

(or set-off or cross

demand) for £

being a sum equal to (or

exceeding) the claim in

respect of” [here state

grounds of counterclaim

etc.], or

2. That

[diddydicky]

this is from company law with regard to a SD but i believe the points are valid

 

did the judge look at your affadavit?

 

it may well be that he was giving you a nod and a wink that you need to strengthen it!!

 

Importantly, in order to demonstrate to the Court that a genuine dispute exists, a company wishing to set aside a Creditor’s Statutory Demand does not need to prove that it has a successful defence to the alleged debt. The company merely has to point to the facts and circumstances in an Affidavit which, if proven at a trial, might give rise to a defence, even a weak defence.

 

 

The Court is not concerned with who is or might eventually be proven to be right or wrong. The Court is only concerned if there is a genuine dispute. The Full Federal Court in Spencer Construction Pty Ltd -v- GAM Aldridge Pty Ltd (1997) 76 FCR 452, 464 stated that a dispute will be genuine if it is “real and not spurious, hypothetical, illusory or misconceived.” In the recent case of TR Administration Pty Ltd -v- Frank Marchetti & Son Pty Ltd [2008] VSCA 70 Dodds-Streeton JA held that “no in depth examination or determination of the merits of the alleged dispute is necessary, or appropriate ….”.

 

 

The point is, the threshold for demonstrating whether a genuine dispute exists is set very low. A company that can put the “whiff” of even a potential weak defence before a court might successfully have the Creditor’s Statutory Demand set aside. If that happens, you, the creditor, will be faced with the likelihood of being ordered to pay the company’s legal costs of the court proceedings.

 

 

It is for that reason we recommend proper consideration is given to the question of whether a genuine dispute might exist between a creditor and a company before a Creditor’s Statutory Demand is issued. A Creditor’s Statutory Demand is usually a reasonable avenue to take in straightforward cases of companies that have failed to pay an invoice for goods or services rendered.

[trumpetmaest]

Do you think/can you re submit an afferdavitt?

Is their a template or somethjng on here to help with a statement ?

I must admit that I feel a little out of my depth at the moment.

[diddydicky]

the template is above

[lilly white]

Form 6.5

 

For (a) fill in your name and address and state that you are a litigant in person.

 

For (b)

1. That on (b) (insert date that you received the SD through the post) the statutory demand exhibited hereto and marked 'A' came into my hands

 

For ©

2. that I © Do not admit the debt because the alleged debt is totally disputed.

 

 

 

The alleged creditor states that the amount is owed under an agreement which has not been provided

 

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.

 

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).

 

j) In respect of judgment of Mr Justice Warren as set out above the applicant avers that there is a clear dispute in relation to this debt and furthermore the respondent has been made aware of the matters complained of and despite this a statutory demand was issued

 

I make this statement with the sworn belief that all facts stated are true.

 

 

edit to suit.

 

if it was me i would do both .

 

start with form 6.5 and them the statment,

 

put them on here and we will go through them with respect one at a time.

 

 

HOWEVR THE ALLGED DEBT IS TOTALLY DISPUTED

[trumpetmaest]

Here is the letter i have just received from the court

"

Please can someone help??

 

I dont know what to do.

can I change or add to my afferdavit?

can someone help me with a witness statement?

I am now so bothered about this that I have been put back on anti anxiety tablets by the doctor.

 

the hearing is now on the 8th September

 

The date of the 23rd July is the day before I have to go away out of the country.

[trumpetmaest]

bump

[volvodriver]

OK

 

First thing to do is relax and get a grip on yourself - I know that's not easy, but you are better off alive and in debt than dead through the worry of it.

 

It looks to me, and I am neither experienced nor qualified, that you simply need to resubmit the information you have in a way which is acceptable to the court.

 

I think you have already been given above the guidance you need to do that, and maybe someone more experienced could post a witness statement template.

 

Its important that YOU do it, as it will be you that has to appear in court and argue your case, and this is a self-help forum.

 

Take a day or two off, relax, and come back to it with fresh eyes. There is a long road ahead, and plenty of support.

 

But the real win for you is building your confidence to be able to deal with it.

[pulu31]

Volvodriver, Might I say, what a sensible piece of advice you have given.

[Liz Southern]

In the type name of court in caps County Court Case No: type no

 

In Bankruptcy

PARTIES

 

type your name in caps

Applicant

- v -

CAPQUEST INVESTMENTS LIMITED

Respondent

By ORDER of DJ Judge type judge’s name on type date of order

I, type your name, attach my Witness Statement hereto, having served a copy upon the Respondent.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(NOTE: THIS IS A COVER SHEET FOR YOUR WITNESS STATEMENT SO YOUR STATEMENT DOES NOT GO ASTRAY. ATTACH IT BY PAPER CLIP ONLY TO THE FRONT OF YOUR STATEMENT, AND OBVIOUSLY TAKE THIS NOTE OFF.)

 

 

 

NOW, PUT YOUR WITNESS STATEMENT ON A NEW PAGE

 

I, Type your name in caps, of (your address), Do Make this Witness Statement as follows:-

I do not admit the debt because the creditor has not provided any evidence of its claim as required by the Consumer Credit Act and is prevented from enforcing any claim until it does by the provisions of that Act.

And further that the creditor is bringing a claim under the Insolvency Act 1986 in order to circumvent the lawful prohibitions placed upon it by the Consumer Credit Act 1974.

The debt is totally disputed.

 

The creditor has not provided any legible copy of a copy of the agreement referred to in ='Arial','sans-serif']“The creditor must…be taken to have made a voluntary disposition, or

Edited July 16, 2009 by Liz Southern
see next post

[Liz Southern]

Hi

 

I was trying to transfer my Affidavit which I transposed into a witness statement but for some reason it was showing all the font directions, so it hasn't come out very well.

 

Anyone know how I can get it to appear without font instructions?

 

It's the one I used successfully against American Express.

 

What's showing above is a cover note. Your witness statement attaches to this by paper clip only.

 

From reading the Order, the Judge only wants to see your evidence. You will have to attach to the witness statement (by paper clip only) a copy of each document or letter upon which you are relying to win your case.

 

Each document is listed in the witness statement (eg, Doc 1, Doc 2, etc) and on the top right hand corner of each copy document you write in red pen "Doc 1" or "Doc 2".

 

Then do one bundle for the judge (originals), one bundle for you and one bundle for the other side. You can also have other documents there if you want, and you can hand something to the judge to read, and the judge might hand it back to you.

 

Regards

Liz

Edited July 16, 2009 by Liz Southern
bad syntax. not having a good day!!!

[Liz Southern]

If you want to keep your originals, put these in your own bundle and hand the judge copies, but be prepared for him to moan at you - and ask for the originals. That's when you hand them over and say sorry.

 

If the judge gets testy any time, say sincerely, "I'm only a lay person. This is all new to me."