Another CapQuest/SD case *** WON + COSTS ***

[Ariesi64]

Hi. Ive been trying to learn the ropes on this site after recieveing a Bankruptcy threaten letter dated 21st July, recived 25th July sent to me first class.

 

I have sent a CCA letter to CapQuest requesting further info with my £1 PO and had a reply that my account is on hold for 28 days while they gather the required info (I also asked at the same time for statements listing all payments debits credits charges etc on the account).

 

I have also applied for the Sd to be set aside, my papers are now with the court.

 

The debt relates to an unpaid balance on a credit agrement dated 01 with Citicard. It states the agreement was terminated upon my failure to comply with the terms of the agreement and/or a stautary notice of default issued by citicard.

 

The rights and duties of citicard PLc passed to the creditor persuant to an assignment dated 05.

 

total amount due is £3XXXX which includes £1xxxx interest added since assignment of the debt.

 

I like many others got into difficulty and have spent the last few years paying off my debts, but this has come out the blue even though they say I have not responded positivly to their correspondance (this SD was the first I knew about this!!)

 

I know I have had dealings with this company before but I am sure was for a different debt I paid off. They scared the living daylights out of me then as well as phoning etc. Wish I knew of this site then.

 

My problem is,I no longer have any paperwork as I moved lats year and did a spring clean and basically chucked out everything before I moved. I thought I had paid off all my debts.

 

Basically I need to know if im on the right track please. I have a feeling this debt maybe statue barred as I really dont remember acknowledgeing this debt but tbh im not 100% sure as I really dont remember who/what I finally paid off.

 

Any help/advice please on what I do next, as right now im waiting on the mailbox for something from both the court and capquest.

 

Oh and one other thing, when I took in the set aside docs to the court today I was told the judge would decide if it would go to hearing or get chucked out, what does that mean, my set aside could be ignored? Im unsure of what happens next.

 

Sorry the post is long winded but after getting this far I now feel lost as to what to do next.

 

Thankyou in advance

Edited August 13, 2009 by 42man
Edited due to poster being recognised....

[lilly white]

good morning and welcome.

 

Well done for taken this action.

 

The court will inform you when the the hearing is please ensure that you put your cost in also please do complain.

 

Lilly white

[PGH7447]

can you remember when you last paid anything or made a written acknowledgment of this debt?

 

also if you have no paper work then you could sar citicards

[42man]

Firstly well done Ariesi....a SAR to the original creditor might be a good idea, this one might suit - LETTER 11 from here -The Consumer Forums - Debt collectors

 

PLEASE, PLEASE report them to the OFT too...

 

Checklist is (for others reading this thread who aren't familiar)

CCA sent off and SAR to original creditor

Apply forms 6.4 (set aside) and 6.5 (affadavit) (make sure the affadavit and any other associated paperwork to refer to in the affadavit is sworn in) make sure you take the ORIGINAL stat demand to court as well....

This has to be done within 18 days of receiving the demand....

Send costs to court at least 24 hours before the hearing, they need to be in the court at least 24 hours before.

Costs here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/211818-lowell-hampton-statutory-demand-3.html#post2337865

[Ariesi64]

Hi and thankyou for the responses and the corrections to my post.

 

Update, today I have recieved a large envelope from Capquest. This debt I now know and have made recent payments in the last couple years. I stopped paying it when they kept increasing the monthly amount until I really couldnt afford to pay it.

 

Enclosed was a letter stating they have enclosed the documents as requested and my account is on hold for another week or so.

 

In the envlope is copy statements, thats all. There are no copies of any of the documents I have request apart from the statements. The staements go back to the start of the account with a printout of my payments to them and the interest/charges etc added.

 

So now I think I send another letter to them stating the account is still in dispute as they have not given me a copy of the credit agreement etc? Is there a template for this please.

 

Also what can I do with the charges on the account, which amounted to approx £75 every month.

 

As to costs about the set aside, ive read on some pages that CapQuest are now reacting aggresivly against people who apply for costs so I have not applied for costs and I would not even know where to start to do it. Im having panic attacks now just thinking about the hearing itself.

 

Any advice is greatly appreciated, thankyou.

[the_shadow]

As to costs about the set aside, ive read on some pages that CapQuest are now reacting aggresivly against people who apply for costs so I have not applied for costs and I would not even know where to start to do it. Im having panic attacks now just thinking about the hearing itself.

 

Any advice is greatly appreciated, thankyou.

 

You apply for costs at the hearing......you advise the court 24hours prior to the hearing basically just with a statement of costs so I'm not sure what crapquest can do in 24hours if they do find out you are applying for costs anyway

 

Not sure where the aggressive bit comes into it, sounds like the sort of thing that capquest would "want" to say.

 

S.

[42man]

You MUST apply for your costs....have a look at this link - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/211818-lowell-hampton-statutory-demand-3.html#post2337865 you are entitled to them if the judge grants, and you ask for them if it is set aside, what can he say ? no at worst....The judiciary in general do not like the Insolvency Service used as a method of debt collection.....

 

As a lone parent 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).

 

On another note, I have been handed a Capquest stat demand by an acquaintance, interestingly enough, it is quoting a court that does not handle bankruptcies/insolvency....so this is an abuse of the process, I will be forwarding it to the Office Of Fair Trading....If Mr Barry Davies at Capquest is a qualified solicitor then he will be regulated by the SRA.....

 

How much in total are the charges ?

 

This is the link for faliure to respond to the CCA request - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

Send recorded...

[42man]

Also....if you try to ring Mr Davies you will find he is never available,(only speak to him as it is a legal matter) try ringing and if on the rare chance you do get to speak to him state that you will be defending the demand and then put the phone down....note down the dates and times you called and you can add this to the affadavit...

 

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.

 

If you try to contact the named person and they won’t put you through then it is also invalid.

[42man]

Letter including Statutory Demand from Capquest

 

Dear....

 

We regret that you have not responded positively to our previous correspondence and unless we are able to reach an agreement for payment with you, we will be forced to consider action against you to recover the sum due. Enlcosed with this letter is a statutory demand under section 268 (1) (a) of the Insolvency Act 1986. You should read this carefully. The relevant information as to how to deal with and respond to the Statutory Demand is set out within the document, if you need help or clarification we suggest that you seek the advice of a solicitor or a reputable financial advisor.

 

Failiure to respond to a statutory demand is evidence that this is a debt that you appear either to be unable to pay or have no reasonable prospect of being able to pay. This is a ground on which a bankruptcy petition may be presented against you. We stress that our decision to pursue the bankruptcy procedure is not irreversible and we only do so as a last resort. Our preference is always to seek to reach an agreed repayment plan to avoid the need for such action.

 

Our experienced team of blah blah flipping blah....

 

We urge you not to ignore this letter and to act within the time limits set out in the statutory demand.

[42man]

Off to the OFT......it's only a matter of time before restrictions are placed on CQ for the same as 1st Credit !!! (especially as Capquests Licence comes up for renewal in a few months time !!!)

Edited August 13, 2009 by 42man

[42man]

If you need some help with the affadavit please let me know...

[42man]

Ah just checked you have already submitted the set aside and affadavit, if there is anything you're not sure of please shout.....

[Ariesi64]

Hi and thankyou for all the responses.

 

OK I have drafted this letter to send when the 12 days expire, but im unsure if its 12 days from when I sent the original CCA request or when they received it? From the letter they sent it seems nothing more is coming my way from them reguarding the CCA request.

 

Can someone please look over this letter and tell me of any inaccuracies I have missed as im still unsure of what im doing.

 

------------------------------------------------------------

 

I DO NOT AKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

 

 

Re: =

 

Dear Sir/Madam

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the (date) I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the (date) I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974.

 

Furthermore you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation and this limit has expired.

 

As you are no doubt aware section 77(4) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled, while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it.

 

Consequentially any legal action you pursue will be averred as UNLAWFUL.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I will be reporting your actions to any such regulatory authorities as I see fit.

 

Yours Sincerely

 

------------------------------------------------------------

 

The charges and interest on the account come to more than 1/3 and less then 1/2 of the debt they now asking for. Im unsure of how to proceed with the charges or even if theres anything I can do.

 

Thanks in advance

[lilly white]

Well they have 12 and 2 days to sent you the cca

 

i would urge you to read in full this link as they have issue SD,IT IS TO THEM TO PROVE AND YOU REFUTE ALL CHARGES

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/211818-lowell-hampton-statutory-demand-3.html#post2337865

 

I would also advice you to read the link to the times man in the moon

 

Again they have issued and it is for them to prove so much.

 

Regards you are in safe hands

 

Lilly white

[Ariesi64]

Sorry for bumping but an someone please check the letter I have written above in reply to the non compliance of the CCA request as I need to send it tomrrow so want to be sure the wording etc is correct

 

Thankyou

[Ariesi64]

Hi.

Well I sent the letter recorded delivery monday morning stating they havnt supplied me with my agrement etc, (I hope the wording was correct), as yet no further reply from CapQuest.

 

I have today recieved a letter from the court, my hearing for the set aside is the second week of september.

 

What do I need to take with me to the court hearing please, now im totally lost. Im defending I think in the fact of still no compliance with the cca but what happens if they do supply it?

 

Really desperate for advice

 

thanks

[42man]

There are plenty of other points of law for not allowing a demand to go through....i.e does the agreement contain the prescribed terms ? is it executed ? is the default note compliant ? was it ever sent ? penalty charges ? notice of assignment from original creditor ?

 

Please do spend some time reading through some of the other points of law and the statements on high court case laws... - DCA Legal Successes - The Consumer Forums

 

You just need to try and understand what is being said....

[42man]

Don't forget to submit your costs 24 hours before the hearing, they should be in the court for at least 24 hours before the hearing - head a sheet of paper LITIGANT IN PERSON COSTS - http://www.consumeractiongroup.co.uk/forum/legal-issues/207135-help-sd-received-today-3.html#post2272048

[Ariesi64]

i.e does the agreement contain the prescribed terms ? which agrrement?

 

is it executed ? - Mine was sent fisrt class post with nothing prior to this and it seems that could be dodgy

 

is the default note compliant ? Was it ever sent? - I dont remember ever recieving a default notice

 

penalty charges ? - loads of interest on the debt has been added

 

notice of assignment from original creditor ? - dont ever rememeber this either, just remember CapQuest letter out the blue saying they now have the debt.

 

They sent me copies of all my statements with a printout of interest added and on what dates. There was nothing else except a letter saying they have sent me what I wanted and to contact to pay them.

[Ariesi64]

Today recieved a letter back from CapQuest - they have requested the the forms from Citicard and will forward them on when recieved. Hmm, my understanding is shouldnt they have had these forms BEFORE they could lawfully issue the SD?

[42man]

Luckily you now know a bit more....but they were hoping you might be frightened enough to either pay or not know your rights !! What they weren't hoping is that you were going to defend...

[42man]

Very interesting I notice that Barry Davies (Currently Capquest) is EX 1st Credit's LCS solicitors, who had restrictions placed on them by the OFT - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/116591-1st-credit-stat-demand-2.html#post1418978 - it would seem from this thread that there have already been some complaints made to the LSC !!!

[Ariesi64]

Quick update, court next week to apply to set aside, still no CCA yet.

 

A letter from Cap today, enclosed a copy of the letter to the court, saying they dont have time to gather the required information so quote "we ask the aplication is granted but with no order as to costs" It also goes on to say that they anticipate subsisequently obtaining the information saying debt is due they will proceed with a claim in the county court which I then have an oppertunity to defend.

 

first - what will happen now if I apply for costs, will they turn up and fight me?

 

second - does this mean they will take me to court if they produce a CCA?

 

any advice please really appreciated

 

thanks

[lilly white]

please carry on go to court ask for your full costs.

 

In regards to the possible next stage we will deal with that in due course.

 

As it stands no cca no contest.

 

 

regards lilly white

[AngloIrishGuy]

Well done Aries for holding your ground and fighting off these bullies, these hideous people need to be thought a lesson.

 

They cant do anything without proof you owe the alleged debt. If they don’t have a CCA then they have no proof. Apply to the court for costs and hit them were it hurts!

 

I am in court (early October) with CapQuest. They issued a SD against me without providing any evidence whatsoever, it seems under very similar circumstances to yours ( http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/214219-caqquest-statutory-demand.html ) I will be watching you thread closely to see the outcome!

 

Best of Luck - not that you will need it