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

[trumpetmaest]

Thanks.

 

I am going to try and get this sorted today

[Liz Southern]

Thanks.

 

I am going to try and get this sorted today

 

Carrying on from above, I'll just type it in.

 

"The creditor has not provided any legible copy of the agreement referred to in the Statutory Demand or attached to the Statutory Demand. [Doc 1]

 

Under section 78 (a) of the Consumer Credit Act I sent a formal written request [Doc 2] for any true copies of any Consumer Crdit Agreements signed by me and a Subject Access Request [Doc 3] to INSERT CAPQUEST AND THEIR ADDRESS by recorded delivery on INSRET DATE [Doc 4; Proof of Posting and Proof of Payment].

 

I have not received the information requested in my Subject Access Request and have not been provided with all statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges).

 

To date the creditor has not sent me 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. If they had been able to supply these agreements then they would have done already to avoid slipping in default under section 78 (1) of the Consumer Credit Act.

“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.

3. (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.

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)

The creditor has provided no default notice in accordance with the Consumer Credit Act 1974. This stated, the default notice in order for it to be valid must be in the prescribed manner and be correct.

The Need for a Default Notice

• notwithstanding the above, it is also drawn to the Court’s 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 I put the Creditor to strict proof that said document in the prescribed format was delivered to me.
  

• Notwithstanding the above points, I put the creditor 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 creditor’s 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 an 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).
  

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 Trust'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 THAT THERE WAS 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,[/font] 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.”

The Need to Complete the Statutory Demand Correctly

The Statutory Demand has not been completed in accordance with due procedure.

 

The creditor has not entered on the Statutory Demand whether the amount quoted is made up of principal only or whether it represents principal plus any interest and/or charges. If the amount is partly alleged to be interest, no interest rate is stated. The amount of interest forming part of this amount should be shown separately. How the charges have been calculated should also be shown. This has not been done.

 

The Statutory Demand does not state whether the debt is due now or in the future.

 

The Statutory Demand does not state why the creditor believes I cannot pay the debt.

 

I DENY that I am liable to the creditor as alleged in the Demand at all.

I, the alleged debtor, respectfully request that:-

THE JUDGE DISMISS the Demand on the above evidence.

THE JUDGE ORDER the creditor to delete all adverse information held on my credit files.

THE JUDGE ORDER the creditor to pay my full costs in light of the distress and damage I and my family have suffered and to make an indemnity award.

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).

I believe the facts herewith in this Statement are true.

DATE: ___________________________________

SIGNED: _________________________________

Applicant

Edited July 19, 2009 by Liz Southern

[Liz Southern]

Carrying on from above, I'll just type it in.

 

Obviously, you will need to look through this to amend parts that apply to you. Watch out for where you need to put Capquest's name, address and a date in.

 

I can't take credit for the bones of this. I got it from a friendly consumer action website. Wonder who that was??? I just customised it a little.

 

Going off the site now. If you need help I'm sure there'll be plenty around.

 

All the best for next week.

Regards

Liz.

[trumpetmaest]

I have been working most of the day (and night!) on my statement. I would like to say a BIG THANKYOU to you all for helping. I do hope that this is right and I would appreciate any comments/input.

 

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 the Statutory Demand or attached to the Statutory Demand. [Doc 1]

Under section 78 (a) of the Consumer Credit Act I sent a formal written request [Doc 2] for any true copies of any Consumer Credit Agreements signed by me and a Subject Access Request [Doc 3] to CAPQUEST, Fleet 27, Rye Close, Fleet, Hamsphire, GU51 2QQ by recorded delivery [Doc 4].

 

I have not received the information requested in my Subject Access Request and have not been provided with all statements for the duration of the alleged agreement.

 

To date the creditor has not sent me 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. If they had been able to supply these agreements then they would have done already to avoid slipping in default under section 78 (1) of the Consumer Credit Act.

 

“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.

 

3. (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.

 

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)

 

The creditor has provided no default notice in accordance with the Consumer Credit Act 1974. This stated, the default notice in order for it to be valid must be in the prescribed manner and be correct.

 

 

The Need for a Default Notice

 

• notwithstanding the above, it is also drawn to the Court’s 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 I put the Creditor to strict proof that said document in the prescribed format was delivered to me.
  

 

• Notwithstanding the above points, I put the creditor 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 creditor’s 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 an 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).
  

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 Trust'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 THAT THERE WAS 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.”

Furthermore, the total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of charges that are unfair and therefore invalid under the Unfair Terms in Consumer Contracts Regulations plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

 

The Need to Complete the Statutory Demand Correctly

 

CPR PD INSOLV 11.4 states …

 

“The creditor is under obligation to take reasonable steps to bring the demand to the debtor’s attention and if, practicable, personal service should take place. Where this is not possible, the creditor is allowed to serve the demand either via post or through a letterbox, but it is expected that following steps have taken place first:

 

• One personal visit to each of the debtor’s known residencies and places of business
  
• If it is not possible to serve the Statutory Demand during the visit(s), a letter should be sent to the debtor making her/him aware of the visit(s) have taken place and purpose of the visit(s). The letter should also state that another visit will be made for the same purpose and specify the date, time and place. At least two business days’ notice must be given. The letter should also state that if the time and place are inconvenient, the debtor should name a reasonable alternative. The letter can also state that if the debtor fails to keep the appointment, the demand will be posted/inserted through a letterbox and, if a bankruptcy petition is presented, the court will be requested to accept this as a service of demand. Copies of the letter should be sent to all known addresses of the debtor.”
  

The statutory demand was posted via bulk mail [doc no.1] along with an accompanying letter [doc no] stating .

“We stress that our decision to pursue the bankruptcy petition is not irreversible and will only do so as a last resort. Our preference is always to seek a repayment plan to avoid the need for such action… Our team of experienced negotiators is here to assist you in agreeing a plan to clear your indebtedness without the need for any further action”

In these three statements not only have they breached the OFT Guidelines on the collection of Debt but the Respondent has made it clear that they have issued the Statutory Demand as a clear abuse of the insolvency system.

 

The Statutory Demand has not been completed in accordance with due procedure.

 

The creditor has not entered on the Statutory Demand whether the amount quoted is made up of principal only or whether it represents principal plus any interest and/or charges. If the amount is partly alleged to be interest, no interest rate is stated. The amount of interest forming part of this amount should be shown separately. How the charges have been calculated should also be shown. This has not been done.

 

The Statutory Demand does not state whether the debt is due now or in the future.

 

The Statutory Demand does not state why the creditor believes I cannot pay the debt.

 

I DENY that I am liable to the creditor as alleged in the Demand at all.

 

I, the alleged debtor, respectfully request that:-

 

THE JUDGE DISMISS the Demand on the above evidence.

 

THE JUDGE ORDER the creditor to delete all adverse information held on my credit files.

 

THE JUDGE ORDER the creditor to pay my full costs in light of the distress and damage I and my family have suffered and to make an indemnity award.

 

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).

 

I believe the facts herewith in this Statement are true.

 

DATE: _________________________ __________

 

SIGNED: _________________________ ________

Applicant

[Liz Southern]

Hi Trumpetmaest

 

It looks good to me. If the judge comments that this is a "technical" Set Aside application, agree with him, because you ARE disputing it on technical grounds.

 

Opinions invited, Caggers, and comments for Trumpetmaest's big day.

 

Break a leg for the hearing,

Liz.

[volvodriver]

I cant help with the law, but well done for getting this done, and best of luck with whatever comes next!

[lilly white]

OK WELL DONE

 

FOR YOUR STATMENT RE THE APPLICATION FORM THAT THEY SENT

 

USED THIS

 

 

14. In addition to the copy of the Credit Card Application form filed by the Claimant in their Exhibit “SLG1”, the Claimant has filed a separate sheet titled “Conditions”. There are certain prescribed terms within this latter document, however this document does not appear to be linked to the Application Form. In addition the Defendant submits that this separate sheet does not comply with the Requirements of the Consumer Credit (Agreements) Regulations 1983 (SI 1983 / 1553) and the Consumer Credit Act 1974 (The Act) because the prescribed terms must be contained within the Agreement and they cannot be found in a secondary document headed Terms and Conditions or in this case “Conditions” (Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299) (Exhibit “SJ_51”).

 

15. The Defendant also submits that the document titled “Conditions” filed by the Claimant, shows no relation to the Application Form provided and there is no link between the Application Form and the Conditions. The Defendant therefore

puts the Claimant to strict proof that these Conditions actually relate to this Application Form.

 

CHECK THE DOCE=UMENT THE SENT MAKE SURE THAT THEIRE IS NO LINK BETWEEN THEM I AM GOING FROM MEMORY IT IS GETTING LATE.

[lilly white]

Need Any More Help Shout.

 

Please Check The Application That They Sent

 

1 If The 2 Documents That They Sent Are Not Link They Are Dead In The Water Imho.

 

The Terms Cant Be Found In Another Document They Could Have Got It From Any Where.

 

Please Check This

 

So Your Statment Is Built Around My Last Post

[1970]

good luck on this one, very interesting thread.

[lilly white]

OK HAVE A LOOK AT THIS ONE EDIT TO SUIT

 

 

For you affadavit....

 

The defendant totally disputes the debt.

 

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

 

The alleged creditor has provided no assignment from the alleged original creditor

 

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. (it not being uncommon that some debts are made up entirely of excessive penalty charges)

 

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 (XXXXXX). 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

 

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 demand 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 demand 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 demand. It is averred that the alleged ORIGINAL CREDITOR has served a valid 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.

 

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

 

Law Of Property - s136 Legal assignments of things in action

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

 

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925

 

 

Rights and Duties

CCA74 s189(1)

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

 

CCA74 189 (1)

“ debtor “ means the individual receiving credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement includes the prospective debtor

 

 

Abuse of Process

 

A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid

 

I have on 3 separate occasions attempted to speak to the named contact but on each occasion I have been denied the chance to speak to that person.

 

(log the times and dates here)

 

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.

 

I also request the judge order the alleged claimant to remove any adverse data on my credit files.

 

I also request the judge consider making an indemnity award in light of the upset and inconvenience that this has caused me and my family.

 

I also make the request that the judge orders a bankruptcy restraining order against the alleged creditor

 

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.

[trumpetmaest]

lily, can I add to/change my orginal affidavit?

[trumpetmaest]

what do you mean by link?

[lilly white]

Yes Why Not.

 

 

If The Judge Ask Say That You Took Advice And Thank Him For Asking You To Look Closer At The Their Statment.

 

The Only Issue You Will Have You May Have To Get Re Sworn Again Check With The Court Explain When You Are Seeing The Judge.

 

Also Your Are A Lay Person If You Get My Drift,

 

If They Will Not Allow You To Change Put Everthing In You Statment.

 

Regards Lilly

[lilly white]

Link

 

Is There Any Thing On The 1st Page To Lik It With 2nd Page

 

 

Page 1 Page 2

 

See Overleaf

 

Please Turn To See Conditions

[trumpetmaest]

Nothing on them to link.

[trumpetmaest]

ok just finishing the statement. Should I include the application form or do capquest?

[lilly white]

the judge has ask for a witness statement.

 

So do that ,set it out as capquet have, however put everything in the WITNESS statement.

 

 

READ WHAT THEY ARE ASKING FOR.

[summer30]

good luck with this

[trumpetmaest]

all done.ready to serve

[lilly white]

god bless my friend and good luck

 

 

 

regards lilly white.

[trumpetmaest]

I wonder if someone can advise?

 

I filed my witness statement at court on 21st July (I have stamped proof) and sent a copy to c*pquest on 22nd July via post (I have proof of postage).

 

However, I have not received anything from c*pquest and their deadline to serve was 20th August. Is this correct? If not, should I inform the court and if so is there a template/specific way to do this?

 

I have reposted the order below.

"

Please can someone help??

[ODC]

Typical arrogance from Crapquest.

 

Contact the Court and check.

[vint1954]

Have you read this

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/215740-martin-capquest-statutory-demand.html

[Liz Southern]

I wonder if someone can advise?

 

I filed my witness statement at court on 21st July (I have stamped proof) and sent a copy to c*pquest on 22nd July via post (I have proof of postage).

 

However, I have not received anything from c*pquest and their deadline to serve was 20th August. Is this correct? If not, should I inform the court and if so is there a template/specific way to do this?

quote]

 

Phone your County Court. Ask for the civil listing clerk and quote your case no. Ask for her help as to whether the Court has received a bundle of documents from the Defendant (as per the DJ's Order). If she says yes, ask them to send you a copy or you can pick it up from the court office. If she hasn't received a copy or an Application for an Extension of Time to File from Capquests, get Form N244 from the Court. It's an Application for Summary Judgment and an Application to Strike Out, based on the Defendants having 'no real prospect of success' and that 'there is no other reason why the case or issue should be dealt with at trial'.

 

Do check, however, I believe there is a fee - which may be waived dependant upon your circumstances, and you must include an application for costs in your N244 application.

Regards

Liz

[trumpetmaest]

Ok folks...

 

I had my SD hearing this morning. Capquest still did not turn up.

 

The Judge DISMISSED the SD. !!!!!!!!!

 

I have been awarded costs from Capquest.

 

I would like to thank you all on here for helping me with this and all your support. I don't know how I would have managed without it.