CaqQuest SD for unknown RBS Debt

[mr.ton]

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

[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.

[AngloIrishGuy]

This is what I put as my defense (form 6.5)

 

"make oath and say as follows:

 

1. That on XXXX the statutory demand exhibited hereto and marked “A” came into my hands.

 

2. That I do not admit the debt because the debt is in dispute, it is not acknowledged and is statute barred.

 

The creditor has defaulted under section 78 of the Consumer Credit Act 1974 for failing to provide a true signed and executed copy of the alleged agreement on request within the prescribed period. The prescribed period as stated in SI 1983/1569 Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 is 12 working days. 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 the creditor who claims to have purchased this agreement from the Royal Bank of Scotland, Plc and have raised the statutory demand. I have sent two separate letters (Dated XXXXX a copy exhibited hereto and marked “B” and the dated XXXXXX a copy exhibited hereto and marked “C”) requesting a copy of the singed and executed alleged agreement which to date have been ignored by the creditor. At this present date XXXXXX, the creditor has had a total 42 days to comply with the request made, and is therefore not only in default as stated above but has also committed a summary criminal offence.

 

Whilst totally disputing the debt I believe that the amount of £XXXXX referred to in the statutory demand includes a substantial sum of unlawful penalty charges. The creditor has ignored all my requests to provided further information regarding the charges they, or the previous/original creditor (Royal Bank of Scotland, Plc) have added to the account, and still have not provided a statement of account which is required under s78 of the Consumer Credit Act 1974.

 

The debt is barred by the Statute of Limitations Act 1980 as no acknowledgement of any nature has been made within the last six years or, indeed, since XXXXX. I put the creditor to strict proof of the contrary.

 

Further the creditor has chosen to serve a statutory demand by ‘regular’ post in full knowledge of the fact that the debt is subject to an ongoing legal dispute. It is an abuse of the process of the court and harassment to send out a statutory demand by post with no intention of relying on it in bankruptcy proceedings. This sort of practice once cost a creditor its Consumer Credit licence (Credit Default Register Limited, licence number 0154753 terminated 5 May 1993).

 

At this present date XXXXXX I sent the creditor a letter (by Royal Mail Special Delivery), copy exhibited and hereto marked “D”, restating that the creditor has failed to fulfill my legal request for a true signed and executed copy of the alleged credit agreement and that they are breach of the law as they are trying to collect a debt that they know to be barred by the Statute of Limitations Act 1980. For specific reference to BARRY DAVIES I have also sent additional copies of the aforementioned letters exhibited hereto and marked “B” and “C”.

 

In of the matters pleaded above, I avers that the service of the statutory demand is demonstrably frivolous, intimidatory and an abuse of process in that the creditor is using the Insolvency Service as a tool for debt collection when the creditor has not provided any evidence a debt exits and is barred by statute.

 

Accordingly, I respectfully request that the statutory demand be struck out or set aside. Further, I invite the court to make an order of costs in my favour in respect of the reasonable cost of researching, preparing and submitting this application and of attending any hearings in respect thereof.

 

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

 

The judge seemed to have no interest - What did I do wrong guys?

[42man]

So he/she didn't set aside ???

 

Flipping hell !! you MUST attend the next hearing !!

 

Was their witness statement signed ?

 

The defendant totally disputes the debt.

 

The alleged creditor has provided no proof that the debt is NOT barred by the Limitations Act 1980

 

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

 

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 AGREEMENT

 

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 Capquest. 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 (as the account does not exist),

 

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 bankruptcy petition 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 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 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 at all. It is averred that the Claimant has failed to serve a 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. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, 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

 

 

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).

 

Statute barred In principle, a debt cannot be enforced after 6 years from the date upon which it became due.

The 6 years runs from the last time that the debt was acknowledged in any way or from the last time that a payment was made towards the debt.

Once a debt has lapsed, it cannot be revived - even through a subsequent acknowledgement or payment.

The relevant law is contained within the Limitation Act 1980.

 

In respect of bank charges claims or PPI claims, you have 6 years to claim from the date on which you could reasonably have discovered that you should not have been paying the money.

For bank charges claims you can claim as far back as 1st Jan 1995.

 

It is a shame you hadn't included actual parts of the CCA and some case law too.....

 

Here are a few witness statements, I really can't believe what an appalling judge you had !!

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/151709-help-10.html#post1891351

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/148840-enforcable-agreement-mbna-help-6.html#post1877388

[AngloIrishGuy]

So he/she didn't set aside ???

 

No it was not set aside. It was for direction, whatever that means - I have to reply to the witness statement. They are sending me the next steps in the post - but the way the post is working at the moment who knows when I shall get that!

[saintly_1]

OK Guys I need help!!!!!!!

 

I am in Court in a few days and CapQuest have sent a whiteness statement response which makes no sense to me what so ever.

 

I dont have a Scanner so I shall type of what they say:

 

1) " In Paragraph 1 of the Applicants Affidvit: he states that he does not admit the debt because the debt is in dispute". I submit that a mere denial is not evidence of a dispute and if the applicant disputes the debt he should provide valid reasons for that dispute. These have not been provided to the Repsondent and the Apllicant merely says the debt is in dispute"

 

2) The Applicant makes reference in his affidavid to his request under Section 78 of the Consumer Credit Act for a copu of the Signed Agreements. The applicant states that these requests were made by letters dated the 10 of June and 20th of July. Upon checking the respondents records neither of these letters were received by the respondent. I can confirm following the applications were made for a copy of the agreement but will not be available in time for the hearing"

 

3) The Applicant states in that the "debt is statute barred". We can confirm that a payment was made 12th of January 2005. This payment is shown in the copu Statements exhibited to this my whiteness statement. I therefore submit that this debt is not statute barred.

 

4) The grounds of the application seem to be that the debt is disputed on grounds which appear to the court to be substantial. This is the requirement of Rule 6.5(4)(b) of the insolvency Rules 1986. I submit that the matters which I have set out above show that these are not substantial grounds for disputing the debt. I respectfully submit that the applicant has not shown that there are grounds upon which the Statuary Demand should be set aside.

 

Not sure what to do - they also sent a copy of several sheets of a bank statement (loan account). Which is at the different address to that of myself but should that payments to the account where of or nearly £30K cleaning the account of all arrears 2006, when the account was closed. this makes no sense to me....

 

Please please please help in responding to this would be greatly appreciated.

Sorry to hear that you had a rough day ....... have quoted Capquests witness staement up to save everyone having to look back for what it actually said

[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.

[AngloIrishGuy]

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.

 

It says it was for £100.00 Card Payment - no other information. Whoever made this payment it was not me.

[42man]

) " In Paragraph 1 of the Applicants Affidvit: he states that he does not admit the debt because the debt is in dispute". I submit that a mere denial is not evidence of a dispute and if the applicant disputes the debt he should provide valid reasons for that dispute. These have not been provided to the Repsondent and the Apllicant merely says the debt is in dispute"

 

1) - The defendant avers that the account is in dispute due to non production of an agreement requested under section XXXXX of the Consumer Credit Act 1974

 

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 Capquest. 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 (as the account does not exist),

 

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 statutory demand was issued.

 

2) The Applicant makes reference in his affidavid to his request under Section 78 of the Consumer Credit Act for a copu of the Signed Agreements. The applicant states that these requests were made by letters dated the 10 of June and 20th of July. Upon checking the respondents records neither of these letters were received by the respondent. I can confirm following the applications were made for a copy of the agreement but will not be available in time for the hearing"

 

The defendant has signed proof that the requests were made (see attached documents marked xxx)

 

3) The Applicant states in that the "debt is statute barred". We can confirm that a payment was made 12th of January 2005. This payment is shown in the copu Statements exhibited to this my whiteness statement. I therefore submit that this debt is not statute barred.

 

 

The defendant categorically denies having made a payment on 12th January 2005 The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

The claimant has provided statements which purport to be an address that I have resided. This is denied as the defendant has never lived at the address written on the statements

 

4) The grounds of the application seem to be that the debt is disputed on grounds which appear to the court to be substantial. This is the requirement of Rule 6.5(4)(b) of the insolvency Rules 1986. I submit that the matters which I have set out above show that these are not substantial grounds for disputing the debt. I respectfully submit that the applicant has not shown that there are grounds upon which the Statuary Demand should be set aside.

 

The claimant has not provided any agreement that contains the prescribed terms and is properly executed. (as mentioned in the particulars of the claim)

 

The claimant has not provided any notice of assignment (as mentioned in the particulars of the claim)

 

The claimant has not provided any default notice in the prescribed form (as mentioned in the particulars of the claim)

 

 

You might want to use pieces from here

 

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 demand.

 

• 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 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 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 at all. It is averred that the Claimant has failed to serve a 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. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, 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

 

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).

 

 

 

 

 

What do the particulars say on the demand ?

 

In the words of Surfaceagentx20

 

"Have a look at the Particulars of Claim. Aren't the words used by the Claimant equally assertive? Are there any 'thinks', 'suggests' or 'reckons'? A litigant has to appear robust. Anything less than a robust plea would tend to introduce a degree of doubt or uncertainty to it.

 

I can understand you feeling uneasy about puffing out your chest and proclaiming law so authoratively, but a Defence as a form of written pleading is a succinct statement of the facts and matters relied upon in defence to the proceedings brought. That's why I said you were entitled to appear cocksure. It's just the way these things are done."

Edited October 1, 2009 by 42man

[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 !!

[summer30]

how awful its stressful enough going to court but then to get that treatment, I do hope its not a sign of things to come, Good Luck on the next bit, everything crossed for you.

[AngloIrishGuy]

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

 

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.....

Edited October 1, 2009 by AngloIrishGuy

[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.

[AngloIrishGuy]

Hi Shadow,

 

Yes they do have someone else's address on them - Its an address in Chelsea in London from what I can make out, either way its not my address nor have I ever lived at that address.

 

Yeah have checked my credit files and its not listed anywhere....

 

There are only 4 listed payments into the account over the years.

 

1) - The £100 they say I made (it says Inter Bank Transfer by Card Payment)

2) - £7000K (They originally said I made that payment but its not submitted anywhere in their evidence) which says on the statement from suspense

3) - £500 which says on the statement from suspense

4) - £23,000K which says BAL TO BBD FINCON

Then it says NIL balance account closed.

 

The final statement shows a balance of NIL....

[42man]

This really should be an open and shut case completely....you state that the statements are for an address you have NEVER lived at...you deny every point of their witness statement, and get the judge to award your costs, this is a vexatious action by them, they obviously have mistaken you for somebody else......

 

If they are continuing to push you for a debt that isn't yours then they are potentially committing fraud !!

[babybear39]

Report them to TS, the OFT and the ICO.