CaqQuest SD for unknown RBS Debt

[the_shadow]

They can make payments to the account if they want... and its very nice of them to pay off your alleged debt but if YOU havent made a payment then its not acknowledging the debt and it cant be un SB'd

 

They have to prove that you made or authorised the 7k payment imho.

 

S.

[the_shadow]

The numbers are all very suspect. like id have a spare £7000 to hand over willy nilly. I don't even know what it is relating to.......they have sent ZERO paper work on this, other than stating they will take legal action and then today issuing a SD.....

 

Oh so hit them for all the costs you can on this, they really should know better.

 

S.

[the_shadow]

I think if I had made a £7K payment I would have remembered it......you can't have done that and just forgotten it!

 

I think you need to SAR them

 

Why? its up to them to prove the payment was made... at most a letter something along the lines of:-

 

"I have yet to receive an answer to my requesting of proof that this alleged debt you say I owe is not stat barred. I now require you to supply me details of this alleged payment to this alleged debt I am supposed to have held.

 

I require a response within 14 days, this letter and previous and further correspondence will be presented to the judge at the set aside hearing for the Stat demand your company has seen fit to issue without providing the evidence I have asked for and I note you are in breach of the OFT debt collection guidance because of this fact alone."

 

S.

[the_shadow]

They have to prove that you acknowledged the debt for it to be un-barred, that is either you making a payment or acknowledge in writing within a 6 year window.

 

I concede the point lickthewallet was making and perhaps you ought to make that £10 sar request or send something similar to the letter above asking for proof. I doubt they have anything on you but if it helps.

 

And please please dont forget as 42man has said... this is only one aspect of the defence... they need a heap of info to prove this case, Default notice, termination letter, notice of assignment.

 

S.

[the_shadow]

Thinking about it which "Rules" apply here Civil Procedure Rules or Insolvency Procedure Rules? (if there is such a thing).

 

The reason I ask is I have seen on other threads people sending off letters citing Civil Procedure Rules requesting documents they (CapQuest/RBS) are going to use as evidence at court? Any thoughts?

 

Unfortunately stat demands are governed by the insolvency rules so you cant claim CPR 31.14 of CPR 18.

 

SAR and CCA s78 request are your only tools here (but I'm prepared to be corrected ;-)).

 

S.

[the_shadow]

Thanks Shadow - So I guess the question is what are the rules under the Insolvency Procedure that allows one to request evidence at court from the respondent?

 

I havent looked extensively but I dont think there are any.... the formal bit is the stat demand then the petition and then the bankruptcy hearing where it gets decided. A set aside interupts this and allows you to stop any petition taking place.

 

The act can be found here.. I've only looked up reference stuff in it as its more unreadable than the CCA1974 & 2006 amendments

 

S.

[the_shadow]

They do have to "prove" that you were given the SD prior to lodging the petition in court, thats why we think this is a mis-use of the bankruptcy process as they post and hope to scare the debtor.

 

Read this thread for more details ->> http://www.consumeractiongroup.co.uk/forum/legal-issues/162131-statutory-demands-service-post.html

 

S.

[the_shadow]

Ok - Applied at the Court this morning to have the SD set aside - was told it will take 5-10 days to get a response as to next steps. Pretty straight forward and easy to be honest. Also, sent the SAR Request.........

 

 

.........just the complaint to the oft left and then its a full house :-D

 

 

S.

[the_shadow]

Good luck with this, I dont understand why they just dont go for CCJs rather than SDs, especially if people dont have a house or any assets.

 

Its probably because they cannot hound people for higher payments if they did .

 

Because a) It scares people, bankruptcy can ruin someones job/life/relationship b) It costs NOTHING to issue this bit of paper c) Its probably quite successful in most cases (where people have no advice) of getting the debtor to either pay the full amount or discuss more than they can afford monthly payments.

 

CCJ's require paperwork backing up a claim and cost money to issue.....

 

S.

[the_shadow]

So is there a good template letter I could use?

 

I dont think there is to be honest, imho it needs to set out the circumstances (chased for debt, you say stat barred, show proof its not, they havent) which are personal and then the way they have gone about things, which is also case specific..

 

 

S.

[the_shadow]

They know your application is more than likely to be agreed hence they dont want the costs against them. As to leaving it till the last minute that plays into your hands.

 

Did they mark the letter "without prejudice"?

 

If not, I would take the letter to the court tomorrow and when the weasel states they offered to withdraw the SD as long as you agreed no costs show the judge the letter, state it arrived the day previous and that you did not have a chance to agree... plus they have had lots of time to withdraw or make the same offer previously and have not.

 

S.

[the_shadow]

Thanks The_Shadow and 42man,

 

The letter is NOT marked "without prejudice" - But it is signed by a real person (a Legal Support Person), the first time they have ever sent me a letter with a real signature.

 

Put simply "They blinked"

 

S.

[the_shadow]

It can all depend on the judge you happened to have got on the day.

He or she couldnt have been having a bad morning & had a row with the wife or hubby etc...you never know?

Its a case of random pot luck when it comes to things like that.

Fear not anyway - the court is a system/proceedure, not just based around 1 looney judge who happens to be having a bad morning

 

Very well said Mr T,

 

Whilst today the judge was not at all interested, unless they reserved the case to themselves chances are the next time the outcome will be different.

 

S.

[the_shadow]

I would propose you need to refute every single paragraph they have stated in the witness statement, if you sent the CCA recorded then photocopy the slips and attach to the statement.

 

The 2005 payment is the important one, how much was the payment and how was it made etc etc. Does the statement they have provided give any clue?

 

S.

[the_shadow]

In the very first post you mentioned a letter stating a payment of £7k was made in January, are they now saying this is £100. I would add the letter to the evidence pile to attach and refer to it to be honest.

 

S.

 

Very good point Shadow....if it is revealed they are lying they will be in a heap of trouble !!!!!

 

Not providing the agreement in 42 days is no longer a criminal offence !!

[the_shadow]

Its weird because in a letter to me in July they said it was not statute barred because a payment of 7K was made. Then in their affidavidt then make no mention of this, only of a different payment. However a year prior to the 7K a payment was made for £100.00. (I never made this payment). I think this comes from the fact that a payment for 7K was made in 2005 then a week after, according to the statements, another payment for for 22K was made and then the account closed and returned to a Nil balance.

 

I am totally confused by all of this.....

 

Me too :-?

 

The statements they have filed as evidence... do they have someone elses address on them?

 

The amounts of payments made on the statements do any of them mention "Charge off" or similar accounting terms to indicate the selling of the debt to a DCA, and does the final statement show a balance of 0?

 

Have you checked your credit files to see if this debt is mentioned?

 

S.