Capquest please help!!!! Stat Demand **SET ASIDE**

[WHITEHART80]

Hi All,

 

I really hope one of you guys can help me confirm what I think I know. I have had a good look around the forums and can't quite find the answers I need.

 

I currently have a claim against the Abbey for unlawful charges stayed with the county court (stay in place since July 07). The value of the claim with interrest is now over £6000.

 

When I started the claim back in 2007 I was still banking with them and the account in question was my main current account. I had an overdraft of £1500 which I used monthly.

 

One month I was a victim of fraud and £700 was taken from my account in transactions in a foreign currency of which I managed to get £80 refunded. In my disgust at the impossible task of getting my own money back to me I opened a new account with A&L and stopped using the Abbey all together. The balance on the accoutn stood at -£2149 this was made up of overdraft and fraud transactions.

 

When the Abbey started chasing me for repayment Itold them that as my claim against them was greater I would wait until the outcome of the test case to see where we stood.

 

Fast forward to July 2009 and I receive a letter from Capquest trying to recover the £2149 from this account. I called them and explained the situation and told them in no uncertain terms to get lost.

 

They then asked me to prove my claim against the Abbey was real, this is where I lost my cool slightly. I told them that I would happily supply the details if they sent a self addressed envelope for me to return copy documents in. I continued that as Abbey had acting against the waiver/banking code I would not be responsible for providing anything.

 

Capquest have now sent me a Statutory Demand notice.

 

My questions are-

 

1- Should the Abbey have been able to sell this debt to Capquest and default my credit file?

 

2- What should I do now?

 

Sorry for the long post, I hope you guys can help me out.

 

Thanks in Advance

 

Dan

[PGH7447]

you need to get the sd set aside first, then you need to report shabeey and capquest to the oft and trading standards, shabbey for passing a disputed account to a dca, and capquest for issuing an sd while the account is in dispute

[PGH7447]

and you need to change banks again now that shabbey and A&L are part of santander, so basically they are the same bank

[WHITEHART80]

Thanks for the reply.

 

Can I apply to have the SD set aside via the post or does it have to be in person.

 

Also do you know of any template letters for the complaint to the OFT and Trading Standards?

[42man]

This is shocking....whilst in litigation Abbey have hoped to have shifted the debt off elsewhere and have seemingly sold it whilst it is in dispute. Your first port of call should be the Office Of Fair Trading and / or Trading Standards....

Edited November 23, 2009 by 42man
typo

[WHITEHART80]

42man, I am honestly shocked that banks behave like this. I will contact the OFT but am I correct in assuming that they dont give advice.

[42man]

As for getting it set aside then you'll need to fill in forms 6.4 (set aside) and 6.5 (affadavit)....the fact that this is in CLEAR dispute will not go down well with a judge, this is a serious abuse of process and a vexatious and unlawful action.

 

Your defence needs to be a little different to others you may have spotted on here, but give me a chance and I will post it up here. You should go for your full costs of your research into consumer law / insolvency / potential indemnity award for the upset it has caused you and your family and request the judge order a bankruptcy restraining order on them. You will need to get your papers in to your local county court (do they handle bankruptcies ? if you don't know, ring them, your closest court should also be named on the demand....if they have put the wrong court on their demand then this is also an abuse of the process.

 

You can find the forms here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html#post778180

 

Once they are filled in, you take the original demand they sent you to the court, along with the 6.4 and 6.5 and any accompanying paperwork, and get the court staff to swear in your documents (take a few copies for yourself). You can get the docs sworn in at a local solicitor but that normally costs about £5 (or at Central London courts they usually charge £12).....

[42man]

No they won't give advice.....but sometimes they do intervene...I can't believe that a major bank have acted like this ...no wait a minute, actually I can believe it !!....also drop this chap a line too - BBC NEWS | Politics | Find Your MP | Harrow West | Gareth Thomas - he is undersecretary of state for trade and consumer affairs and he can (and does) move strings in the OFT...

[WHITEHART80]

wow thanks 42man.

 

I will look forward to hearing from you. I had no idea that there may be potential for costs and the like.

 

I really appreciate your help.

Edited November 23, 2009 by WHITEHART80

[WHITEHART80]

I have printed the forms off. I will wait for your instructions 42man.

 

Many Thanks once again.

[42man]

http://www.oft.gov.uk/shared_oft/business_leaflets/cpregs/oft1008.pdf (adding for reference)

[42man]

Back later !!!

[WHITEHART80]

Many thanks.

[citizenB]

Just tagging on for moral support. You are in good hands with 42man:)

[42man]

You'll need to tidy this up and number it.....and there is a link here for filling out the 6.4 - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162489-statutory-demand-stature-barred-2.html#post1749288

 

The defendant totally disputes the debt and has been in dispute since 2007. This demand is completely unlawful and vexatious and in breach of CPUTR2008 moreover as the debt is in a clear dispute this constitutes a serious abuse of the Insolvency service and the process.

The debt is subject to a stayed court claim in the XXXXX (county court) ref: no: (XXXXX) for the sum of (£xxxxx) against the (bank name). I refer to documents attached numbered (number and refer to documents you want to attach in support of this)

As the alleged debt has been passed on to a debt collection organisation called Capquest, I believe the alleged original creditor has made a serious breach of the banking code.

Reference is made to the latest Banking Code:-

S (2) - When interpreting ‘fairly’, subscribers should have regard to the Unfair Terms in Consumer Contracts Regulations 1999, the Consumer Protection from Unfair Trading Regulations 2007 and to the Data Protection Principles set out in Part 1 of Schedule 1 to the Data Protection Act 1998. The concepts of ‘fairness’ and ‘reasonableness’ should also be considered in accordance with other relevant legislation, case law and their normal dictionary meanings.

The defendant also refers to Consumer Protection From Unfair Trading Regulations

3.4 A commercial practice is unfair if: • it is not professionally diligent, and• it materially distorts, or is likely to materially distort, the economic behaviour of the average consumer. Essentially, for the general prohibition to apply, the trader’s practice must be unacceptable when measured against an objective standard and must also have (or be likely to have) an effect on the economic behaviour of the average consumer.

REGULATION 7

Aggressive practice by harassment, coercion or undue influence

Prohibition on aggressive practices

8.2 The CPRs prohibit commercial practices which • by harassment, coercion (including physical force) or undue influence, • significantly impair, or are likely to significantly impair,

the average consumer’s freedom of choice or conduct concerning the product, and

• The average consumer takes, or is likely to take, a different decision as a result

These elements are described below. Harassment, coercion and Undue influence

8.3 Harassment and coercion are not expressly defined in the CPRs but include both physical and non-physical, (including psychological) pressure. 8.4 Undue influence is defined in regulation 7(3)(b) of the CPRs

In support of CPUTR2008 and The Office Of Fair Tradings guidelines on debt collection I will refer to:

It is averred that the passing of a debt whilst in clear dispute is in direct contravention of CPUTR2008 in line with the Office Of Fair Trading’s guildelines which state.

1.1 The Office of Fair Trading (OFT) has a duty under the Consumer Credit Act 1974

to ensure that licences are only given to and retained by those who are fit to hold

them. The Act provides that the OFT take into account any circumstances which

appear to be relevant and in particular any evidence that an applicant, licensee, or

their employees, agents or business associates, past or present, have:

• committed offences involving fraud, or other dishonesty or violence

• failed to comply with the requirements of credit or other consumer

legislation

• practised discrimination in connection with their business

• engaged in business practices appearing to us to be deceitful, oppressive or

otherwise unfair or improper (whether unlawful or not).

1.7 This guidance applies to all consumer credit licence holders and applicants.

2.2 Examples of unfair practices are as follows:

a. use of official looking documents intended or likely to mislead

debtors as to their status, for example, documents made to resemble court

claims.

b. leaving out or presenting information in such a way that it

creates a false or misleading impression or exploits debtors'

lack of knowledge

Physical/psychological harassment

d. not ensuring that an adequate history of the debt is passed on as

appropriate

Deceptive and/or unfair methods

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

Also in support of this is the Credit Services Code Of Conduct which states:

Part 1 – (d) Comply with Debt Collection Guidance as published by the Office Of Fair Trading

In light of the above evidence and the fact the debt is CLEARLY in dispute it is averred that the issuing of this demand is vexatious and unlawful and a serious abuse of not only the process but of the insolvency service.

HHJ Peter Coulson QC sets out in Jacob v Vockrodt [2007] EWHC 2403 (QB) when petitioning is an abuse of process that could involve the tort of malicious presentation of a bankruptcy petition.

 

The key parts of the judgement on abuse of process are:

 

"It is, of course, right that a bankruptcy petition must not be utilised where the petitioner knows that the debt is the subject of a bona fide dispute, but chooses to proceed with the petition in any event, so as to put illegitimate pressure on the other party to pay the debt."

In light of the way this demand has been presented and in light of the upset and worry this has caused myself and my family, I request the judge order the alleged creditor to pay my costs and I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis.

In support of this request, I would also like to refer the court’s attention to a modern 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).

The defendant requests that the demand is dismissed.

The defendant requests a bankruptcy restraining order on Capquest and its associated companies.

The defendant requests the removal of ALL adverse data placed on my files by Capquest and its associated companies.

I refer to the Banking Code:

DATA PROTECTION.

Banking code 14.6

Subscribers should follow a due diligence process when selecting third parties for debt management, which should include third party compliance with Data Protection legislation, Consumer Credit legislation, Office of Fair Trading guidance on debt collection and debt management, and the code of the Credit Services Association.

Banking code 14.7

Subscribers should follow a due diligence process when selecting any third party for debt sale. Any new contract entered into after March 2005 with such companies should ensure that the third party will comply with Data Protection legislation, Consumer Credit legislation, Office of Fair Trading guidance on debt collection and debt management, the code of the Credit Services Association and the Banking Code’s standards for handling financial difficulties contained in paragraph 14.1 even if the debt purchaser is not a subscriber.

And in reference to the new Lending Code

35. Subscribers can give CRAs default information about a customer’s debts if:

• the amount owed is not being disputed by the customer

 

[42man]

Remember to take the original stat demand to the court, get them to swear in all your supporting documents....make sure you have a few copies of all of the paperwork...the above is for the 6.5

[42man]

You might also take note of this - The Office of Fair Trading: OFT imposes requirements on 1st Credit over debt collection practices

[WHITEHART80]

Thanks 42man.

 

Am I right in thinking that I need to put all of that on 6.5. I am a bit confused.

[42man]

Correct that goes on 6.5....you don't even have to name the dispute, just provide a copy of the court documents from the stay, and make sure you name and number and refer the documents in the 6.5, get it in as soon as possible.....

[WHITEHART80]

Thanks again, I am reading through it all now.

 

What if any supporting documents should I need.

 

I am guessing my county court papers would be a start.

[42man]

Yes the county court papers (which you'll need to get sworn in at the court (free) or a local solicitors (usually costs £5 for all the documents).....which show the stay. (and whatever the judge says about yesterday's decision, you are still going for section 5 of the UTCCR's in your claim....!!!) But although this is the reason for the set aside, I don't want to confuse things too much with your ongoing claim...(you'll need to write to the courts if you haven't got section 5 of the UTCCR's)...

[WHITEHART80]

You are a saint.

I will keep you posted.

[WHITEHART80]

Hello 42man,

 

This may be a really stupid question but how do I get all the text for form 6.5 onto the sheet. Do I need to hand write (hope not) or can I refer to a seperate sheet.

[citizenB]

Hello 42man,

 

This may be a really stupid question but how do I get all the text for form 6.5 onto the sheet. Do I need to hand write (hope not) or can I refer to a seperate sheet.

 

If there isnt sufficient room on the form, put "Please see attached"

 

Head the attached with your name ,who against, the court reference number, Name of court and which section of the form the information should have been in.

[WHITEHART80]

Thanks Citezen b.

 

This all quite exciting actually. I have really got the bit between my teeth. I am sick and tired of being pushed around.