CaqQuest SD for unknown RBS Debt

[AngloIrishGuy]

Some advice please.

 

Background:

 

I received a letter a few weeks ago from CapQuest stating they bought a debt from RBS for over £25K……

 

I sent a CCA, to which they said they could not find the CCA but the debt was from 2002. I promptly sent back a Statute Barred letter.

 

A few days ago I received a letter from them stating that in 2005 I made a pay for – get this - £7000K and therefore was not statute barred. This is a total and complete lie, I have never made any payment of any sort whatsoever and certainly not for £7000K.

 

Anyways I then sent them a letter stating I have never made, nor authorized anyone else to make any payment to them or RBS. I asked them to provide any proof or evidence that I have ever made payments.

 

Today I got a Statuary Demand from them – I plan to make an application at court to have it set aside - but I am worried about this so called payment I was meant to have made.

 

Not sure what to do next?

 

Do they have to provide evidence that I made this payment or can CaqQuest and/or RBS make a payment to keep this account from being SB? I will start the process of filling out the application to have the SD set aside......BUT not sure what to do about this so called payment?

 

Any Help much appreciated.

[mr.ton]

 

The Office of Fair Trading: Contact us

 

http://www.oft.gov.uk/shared_oft/bus...plaintForm.DOC

 

debtcollectionguidance@of t.gsi.gov.uk

[42man]

If it was me in your position I would send out a SAR to both Capquest and RBS.....and get the stat demand set aside too....(have a look at this thread - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164580-capquest-sd-please-help.html I'd say this was a vexatious and unlawful demand, just the fact they are in default of a request for a copy of your agreement would make it so...

[42man]

PLEASE report them to the OFT....you may have seen this other Debt Collection Agency were rapped for sending out stat demands... - The Office of Fair Trading: OFT imposes requirements on 1st Credit over debt collection practices

[AngloIrishGuy]

Thanks 42man - I shall report them today.

 

However, do you know if it is legal for them or RBS to make a payment to keep this debt active?

[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.

[caledfwlch]

Some advice please.

 

Background:

 

I received a letter a few weeks ago from CapQuest stating they bought a debt from RBS for over £25K……

 

I sent a CCA, to which they said they could not find the CCA but the debt was from 2002. I promptly sent back a Statute Barred letter.

 

A few days ago I received a letter from them stating that in 2005 I made a pay for – get this - £7000K and therefore was not statute barred. This is a total and complete lie, I have never made any payment of any sort whatsoever and certainly not for £7000K.

 

Anyways I then sent them a letter stating I have never made, nor authorized anyone else to make any payment to them or RBS. I asked them to provide any proof or evidence that I have ever made payments.

 

Today I got a Statuary Demand from them – I plan to make an application at court to have it set aside - but I am worried about this so called payment I was meant to have made.

 

Not sure what to do next?

 

Do they have to provide evidence that I made this payment or can CaqQuest and/or RBS make a payment to keep this account from being SB? I will start the process of filling out the application to have the SD set aside......BUT not sure what to do about this so called payment?

 

Any Help much appreciated.

 

Shouldnt that make the debt they are demanding 18k anyway? So their figures are not even right!

[AngloIrishGuy]

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.....

[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.

[AngloIrishGuy]

That is my intent but I am still concerned about this "phamtom" payment - no one yet has been able to answer if CapQuest/RBS can make a payment to keep the account active or does it have to be the alleged debtor that makes the payment. CapQuest's letter simply thats "a payment was made" not identifying who actually made the payment.....Any thoughts?

Edited August 11, 2009 by AngloIrishGuy

[42man]

No they can't...if it is real then it sounds like it was paid by them and NOT you....the only reason a debt wouldn't be statute barred outside of the 6 years is (for example) if you'd been convicted of fraud, or faked your death, changed your name by deed poll...

[AngloIrishGuy]

Thanks 42Man......

 

Do you (or anyone else) know what section of the act states this? - I am worried if I get to court and they say, no its not SB because "a payment" was made, but we cant prove who made the payment, what way the judge will view this?

[lickthewallfatboy]

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

[AngloIrishGuy]

F Me £7000! To right id remember......

 

Will they need to produce evidence at court that the amount was paid and who indeed actually did pay it?.....

Edited August 11, 2009 by freakyleaky
Swearing

[42man]

Remember this is only one aspect of your defence....it is up to them to prove otherwise....and I can't remember any times when Capquest have appeared at court !!

[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.

[42man]

The defendant totally disputes the debt.

 

The alleged creditor has provided no proof that the debt is barred by the Statute Of 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).

 

 

[lickthewallfatboy]

Why? its up to them to prove the payment was made...

 

S.

 

if the guy wants piece of mind,why not?He's obviously not 100% sure,and if it was me,and I weighed a tenner against £25 large,I know a tenner would be a cheap deal

[AngloIrishGuy]

Thanks 42Man - for the infor. will also use that construct as a bases to create my owen application to have the SD set aside....

 

Thanks Shadow, Sorry for being a bit daft, but do they only have to prove "a" payment was made or that "I / AngloIrishGuy" made the payment?

 

My concern is that CapQuest/RBS made a payment to extend the life of the debt because I never made any such payments, ever...

[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.

[42man]

It has to be YOU that made the payment, and they have to prove that you made the payment !! Otherwise what is there to stop some debt collection agencies paying £1 into an account and then stating that they didn't do it !!!!

 

You didn't take a loan out in 2005 ? and a portion of that was allocated to pay off another debt ? Don't forget that some debts don't get defaulted until months (sometimes a matter of years) after the last payment was made, and sometimes a bank will offset money from one account to another to pay towards a debt (which is NOT you paying it !!)...A SAR to both the bank and Capquest will hopefully reveal all.....and get the demand set aside !!

[AngloIrishGuy]

Thanks Shadow / 42Man,

 

I honestly don't have a clue what this could be. I have neither banked with RBS, taken out a loan with them or taken a credit card with them......I guess when they provide all the paper work it will become clear.

 

Thinking about it I did once, like in 1998/1999 have a Credit Card with NatWest but I closed that in 2001 - but I only had a credit limit of like 4K or something so I dont see how it could be that since the amount is so high?

 

Anyways tomorrow I intend to file the paperwork at court......

 

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?

Edited August 11, 2009 by AngloIrishGuy

[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.

[AngloIrishGuy]

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?

[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.