GnK08 v Capquest SD - **WON - SET ASIDE WITH COSTS AGAINST THEM TOO!**

[Gaznkaz08]

i'm putting this into it's own thread as it's getting lost in my multiple CCA thread

 

brief history

 

CCA'd capquest nov last year RE a halifax C card.

put it into dispute early dec then got this sent through, signed app form and 2 sets of T&C's

 

 

replied with a you didn't comply letter as i asked for an agreement not an app form

 

to which they sent it again with this covering letter

 

 

so start of the year i sent what i classed as my final word letter,

Thank you for your letter dated 10/12/09, I would like to remind you that the document that you are obliged to send me is a true signed copy of the executed agreement that contains the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in s.61(1) of the CCA(1974) and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

 

 

The fact that on two occasions you have written to me stating that there is no credit agreement in existence .I would suggest you EITHER send me legally enforceable proof that there is any debt or acknowledge the fact the account is now in dispute and cease all activities on the account.. Until you send me this proof I will not be entering into any more correspondence with yourselves, also as this is now in dispute anymore letters will be collated and phonecalls from yourselves regarding this account will be logged and used to compile a complaint file and be passed to the FOS and OFT

this crossed the following letter in the post

 

 

 

to which i replied with 2 letters, one quoting the various oft guidelines they were breaching and one defining the difference between an application and an agreement the OFT letter included

 

As a registered debt collection agency you are licensed by the OFT to trade and therefore have promised to abide by guidelines set out by the OFT. Should you fail to abide by the rules and conditions you undertook to obtain your license, I believe it is understood you can be reported to said OFT so that you can be investigated as to whether you are fit to hold said license

 

I refer you to the following from the OFT Guidelines namely:

 

Deceptive and/or unfair methods

2.7 Dealings with debtors are not to be deceitful and/or unfair.

2.8 Examples of unfair practices are as follows:

 

f. passing on debtor details to debt management companies without the

debtors' informed prior consent

 

i. failing to investigate and/or provide details as appropriate, when a debt is

queried or disputed, possibly resulting in debtors being wrongly pursued

 

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

disputed debt.

 

Considering the above I am now demanding a copy of the letter from the original creditor asking for my consent, (in reference to 2.8 f ) ,also you must include a copy of my written response to such a request confirming my authority for my details to be passed onto yourselves.

I have a just a had a lengthy reply to these last 2 letters

 

 

 

now they say halifax didn't have to ask for authority to pass my details to on to them even though the OFT guidlines 2.8f state they do,

 

they say the agreement signed says they can pass my details onto selected 3rd parties re offers etc Well it's an app form and they are NOT a 3rd party contacting me about and offer or service so is that rubbish?

 

and also to note they state at the start of the letter they bought the debt at £1700, and at the end they confirm i've paid £330 and now the balance is £2099:eek: whats all that about????? Can i do anything about this if needed in any form of defence?

 

 

Is it a good sign they've passed it back to collection from litgation, are they clutching at straws now?

 

whats the next step with these guys??

Edited January 20, 2010 by Gaznkaz08

[Gaznkaz08]

Also what are the getting at when they say i'm disputing the enforceability not the existance of the debt?

[nick20045]

What exactly are you after? Remember one thing, the more you say, the more they know your defence if it was to go to Court.

 

Enforceable! It is as good as a copy of cheap trainers made in China. Question is what are you after? You can send them a letter which will make them shut up BUT the debt will stay there. Only thing is it will get sold on later on to another DCA.

[nick20045]

 

now they say halifax didn't have to ask for authority to pass my details to on to them even though the OFT guidlines 2.8f state they do, They are wrong.

 

they say the agreement signed says they can pass my details onto selected 3rd parties re offers etc Well it's an app form and they are NOT a 3rd party contacting me about and offer or service so is that rubbish? You and they are both wrong. IF you read the application it says that they can also pass the information to 3rd parties and also for administration. Now....... this is where the English language comes in. You have the word "Administration". What does that word mean? Does it mean that you can "Assign/Sell"? No it does not. It means that you have agreeed that Halifax can get a third party to administer on their behalf your account. Hence, you agreed that for example Halifax can authorise CapQuest to administrate the account on their behalf but you never agreed that they can sell it and pass the debt on. The words "Assign" or "sell" are not written. ;)

 

and also to note they state at the start of the letter they bought the debt at £1700, and at the end they confirm i've paid £330 and now the balance is £2099:eek: whats all that about????? Can i do anything about this if needed in any form of defence? That is actually contrary to the law and OFT Guidelines: (Just work out how many of these they are breaking :D)

 

Charging for debt collection

 

2.9 Charges should not be levied unfairly.

 

2.10 Examples of unfair practices are as follows:

 

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision

b. misleading debtors into believing they are legally liable to pay

collection charges when this is not the case, for example, when there

is no contractual provision

c. not giving an indication in credit agreements of the amount of any

charges payable on default

d. applying unreasonable charges, for example, charges not based on actual and necessary costs

e. applying charges which are disproportionate to the main debt.

 

Note: You can write and tell them this BUT let us say they remove all the charges they have added what happens? You have given them one of your reasons why the debt is unenforceable. They amend the error. Now you can refer to it but it has been amended so you have lost that argument. So yes, the question is: What do you want? A letter to make them hit the roof and wind them up?

 

Is it a good sign they've passed it back to collection from litgation, are they clutching at straws now? They can send it back to whoever they want. Personally I would say they are just trying to wear you down with arguments so you cave in.

 

whats the next step with these guys??

Next step is, it depends what you want. You can ignore them and hope they issue a court claim. Then get it struck out. You can keep writing letters to them, they will just answer back.

 

As to the letter they wrote it can be taken apart. Problem is, (in my opinion) you do not want to tell them too much (re what errors they are at law) cos once you do that it will be either: a) if they see it is unenforceable they will sell it on and the game starts again or b) they will know what you have in store for them if it goes to court and will be ready to counteract against it (kind of like poker: if you have 4 aces and a king will you show your hand to the others????)

 

Also 0871 phone numbers join the premium league | Money | guardian.co.uk

 

and

 

http://www.productsandservices.bt.com/consumer/consumerProducts/pdf/SpecialisedNos.pdf

 

In the letter they give an 0870 number and an 0871 number. They are also breaching the guidelines giving out those numbers. I have checked them. The 0870 is at 7.908pence per minute and the 0871 is at 10p per minute.

 

OFT Guidelines

 

2.2 Examples of unfair practices are as follows:

h. asking or instructing debtors to make contact on premium rate

telephone numbers

 

Trying to imply that an application form is an agreement not only is in breach of certain laws but also OFT guidelines:

 

2.2 Examples of unfair practices are as follows:

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

creates a false or misleading impression or exploits debtors'

lack of knowledge

Edited January 21, 2010 by nick20045

[nick20045]

This is a draft letter. It is NOT what I am saying you should send but feel free to edit/delete/ignore/draft your own and use whichever parts you want. Due to the seriousness I would suggest you send by registered mail and not recorded mail.

 

By Registered mail

 

xx/xx/2010

 

Dear Sirs

 

I refer to your letter dated xx/xx/2010 in which you tried to give me a lengthy (yet somewhat misleading) reply and to put your case forward.

 

In your letter you state that what you have sent me is a true copy of the agreement.

 

I am not obliged to explain to you in detail what constitutes an agreement and hence I suggest you read the Consumer Credit Act 1974. What I will tell you is that for an agreement to be legally binding it must:

 

A lawfully binding contract that contains the following 4 mandatory elements for it be deemed a lawfully binding, bilateral contract:

 

1, Full Disclosure.

 

2, Equal Consideration. ("Consideration" means: something REAL, TANGIBLE and OF VALUE, e.g. money, or an item of value - something "Halifax" are trading for my signature / promise). e.g. Halifax, for my signature/promise gives me in consideration £X as credit.

 

3, Lawful Terms and Conditions.

 

4, 'Wet' (hand signed, in proper ink) signatures of BOTH Parties/Meeting of the Minds.

 

As you can see, these are missing from the Application form that you have sent me. Just because it says that the Application form is in respect of the Consumer Credit Act 1974 does to mean it is an agreement. So much so that it also then states "I understand that you may not accept my Application and that you do not have to tell me why".

 

Furthermore, there is also written the wording "When considering an application for credit..........". Hence once again, it is not an agreement but an application form for a credit agreement based on the Consumer Credit Act 1974.

 

You then continue to claim (and try to mislead me) that in the application form it says that I agreed that Halifax can sell the debt to a third party.

 

I have read the application form. What it states is, and I quote from the application form "selected third parties for administration". So what does the word "Administration" mean? It does not mean "Assign or Sell". It means that Halifax can authorise a third party to administrate (manage) the account on their behalf for example in tracing debtors and recovering debt (as even referred to in the application form). To give an example: Halifax wishes to split the banking into 2 departments: Department A is for mortgages and banking and department B simply credit cards. By the agreement Halifax can authorise department B to "administrate (manage)" the account on behalf of Halifax.

 

Hence, as you claim you bought the alleged debt then you had no right to do so as it was without my explicit agreement. You could have been authorised to administrate the account which in that case you would have the right to write and contact me but, as I never signed that a third party can buy my account then you have no right irrespective of what you may wish to claim. Therefore, if you still wish to claim I owe you any money then please supply me with the following:

1. Full bookkeeping records.

2. A contract between you and me, establishing a debt, signed by both parties.

3. A bill signed by you, under full commercial liability of perjury.

 

Incidentally, I also note on your letter that you give an 0870 number and an 0871 number. I do believe that besides the OFT Guidelines you have already breached (as mentioned in my previous letter) you are also in breach of:

 

OFT Guidelines:

2.2 Examples of unfair practices are as follows:

h. asking or instructing debtors to make contact on premium rate

telephone numbers

 

 

I believe that allowing 10 days for you to reply and submit to me the above requested proof should suffice.

 

Yours sincerely

 

Send it to the C.E.O.

Have it registered for proof of delivery. Is that ok for you?

Edited January 21, 2010 by nick20045

[Gaznkaz08]

What exactly are you after? Remember one thing, the more you say, the more they know your defence if it was to go to Court.

 

Enforceable! It is as good as a copy of cheap trainers made in China. Question is what are you after? You can send them a letter which will make them shut up BUT the debt will stay there. Only thing is it will get sold on later on to another DCA.

 

 

what i'm after is getting rid of these scumbags now that i have it in writing that over 2 years i've paid off £330 and my debt has INCREASED by £400:-x

 

 

 

this part of the letter

 

1, Full Disclosure.

 

2, Equal Consideration. ("Consideration" means: something REAL, TANGIBLE and OF VALUE, e.g. money, or an item of value - something "Halifax" are trading for my signature / promise). e.g. Halifax, for my signature/promise gives me in consideration £X as credit.

 

3, Lawful Terms and Conditions.

 

4, 'Wet' (hand signed, in proper ink) signatures of BOTH Parties/Meeting of the Minds.

 

As you can see, these are missing from the Application form that you have sent me.

there are 2 sigs on it

[nick20045]

what i'm after is getting rid of these scumbags now that i have it in writing that over 2 years i've paid off £330 and my debt has INCREASED by £400:-x

 

Told you already. It is illegal. Just let them continue sending letters. Make sure you do NOT admit any liability.

 

 

 

this part of the letter

 

there are 2 sigs on it

So what? 1 2 and 3 are missing as it is an application form. It just means the branch you filled it in counter signed that you have put an Application form in. No 4 is two signatures confirming acceptance of 1, 2 and 3 above.

 

Just add after the word "minds" the following: on the agreement confirming agreement to 1, 2, and 3 above.

Edited January 21, 2010 by nick20045

[Gaznkaz08]

So what? 1 2 and 3 are missing as it is an application form. It just means the branch you filled it in counter signed that you have put an Application form in. No 4 is two signatures confirming acceptance of 1, 2 and 3 above.

 

 

ok was just checking

 

when you say admit liability, by paying this for 2 years does that not do this?

[nick20045]

ok was just checking

 

when you say admit liability, by paying this for 2 years does that not do this?

Technically yes BUT you have ONLY just learnt they had bought the debt. You thought they were administering the account for and on behalf of Halifax.

[nick20045]

Read Slater's letter (last one with two pages) paragraph 2 second sentence. You did the same. You acted on good faith.

[Gaznkaz08]

Read Slater's letter (last one with two pages) paragraph 2 second sentence. You did the same. You acted on good faith.

 

without trying to appear too dense "slater's letter" ???

 

found a member on here called slater, but no letter in his thread and had some really odd results on a google search, lol

[nick20045]

without trying to appear too dense "slater's letter" ???

 

found a member on here called slater, but no letter in his thread and had some really odd results on a google search, lol

Having read that I am seriously contemplating Hara Kiri. What are you trying to do to me!!!!! :D:D

 

Slater's letter. The two page letter. The last letter you received which you put up on this thread in your post 1.

[rhos123]

hi, gaznkaz08, i think nick20045 means the letter from capquest to yourself.signed( ms L SLATER)

[Gaznkaz08]

Having read that I am seriously contemplating Hara Kiri. What are you trying to do to me!!!!! :D:D

 

Slater's letter. The two page letter. The last letter you received which you put up on this thread in your post 1.

 

 

oh dear i'll get my coat:cool:

 

i thought you were on about someone else's letters, DOH !!!!!!

[Gaznkaz08]

Might not have noticed her name at the bottom of the letter, lol but i did notice she was a Quality Assurance Officer, which surprised me as my name was wrong twice and the postcode was completely difference

[nick20045]

oh dear i'll get my coat:cool:

 

i thought you were on about someone else's letters, DOH !!!!!!

Just start clicking them "Scales" (reputation). And do not forget to give one to rhos123 for directing you to the right information. :D:D

[nick20045]

Might not have noticed her name at the bottom of the letter, lol but i did notice she was a Quality Assurance Officer, which surprised me as my name was wrong twice and the postcode was completely difference

Quality assurance officer means very simply: I talk crap. Read her ultimate paragraph in the first page and the first paragraph in her second page and compare to the CCA 1974.

 

Once a dispute is logged regarding the agreement, it is not simply a dispute re the agreement (if the creditor fails to give a copy of the executed agreement) but the credit cannot claim money and the debtor does not have to pay until that dispute is resolved.

[Gaznkaz08]

update on this,received today

 

 

**EDIT**

i take there is a bit of a clue in the last paragraph where they offer nearly a 1k discount on settlement,

 

I like the way the reduced figure is actually only £140 less than what the total SHOULD be going by the starting debt and amount i've paid off it :-x

Edited February 1, 2010 by Gaznkaz08

[Kamira]

I suggest you take your name off the scan, cannot help with anything else though.

[Gaznkaz08]

I suggest you take your name off the scan, cannot help with anything else though.

 

 

odd it's blanked on the actual copy in photobucket, cheers for pointing that out

[Gaznkaz08]

try again:)

 

[Gaznkaz08]

What would be the point of them trying to make me bankrupt. Would that get them the money, I don't own a house my car is worth less than a grand,would they have to pay the fee to do it, is it £500. Seems a bit of a pointless exercise.

[nick20045]

No problem. Write back to them asking them to prove if they have a CCJ yet. As far as I know to make somebody bankrupt you have to have a CCJ first to prove why you have to make the person bankrupt. Otherwise anybody can say "I am owed money and want to make that person bankrupt".

 

The ONLY person that can a person bankrupt without a CCJ is the person himself. i.e. You make yourself bankrupt.

[nick20045]

Anyway, personally I think they are just using it as a threat. For a start they say you have to answer to the demand within 18 days. Bankruptcy in the United Kingdom - Wikipedia, the free encyclopedia says answer has to be within 21 days.

 

BUT IF they do then do not worry. There is one easy way to get the demand thrown out of Court but I am not going to post it yet in case they are reading this thread. ;)

[Zimmie]

Hi Gaznkaz,

I have some experience of Crapquest, I've been dealing with them for over 3 years now. They will have increased the original amount by adding interest, I don't know if this is legal or not. On the statements they send out it says something about interest may be waived if regular payments are made...but they add it regardless...sometimes in massive chunks.

 

The threat of a Statutory Demand is their last attempt at scaring you into paying up...but...they more than likely will issue it. Issuing the SD will not cost them anything, they just have to print the forms off. I believe its when (and if) they follow it through it will cost them.

 

So be prepared for the SD to drop through your letter box, its not too difficult to get it set aside and its highly likely that at the last minute Crapquest will write to the court saying they will not oppose the set aside. You turn up for the hearing,the Judge approves the set aside, you claim costs from Crapquest...simples.

 

I've just been through this with Crapquest myself, and I know lots of other Caggers have too. If and when the SD arrives you'll get lots of advice and support on here.

 

All the best.