Capquest have issued statutory demand - Advice please **Set Aside**

[Anna_j]

letters sent registered post and tried to speak to Barry Davies

Told he does not work at the office i called so asked for the tel no of where he works from - wouldn't give it - told he wouldn't speak to me because he only deals with the administration side of issuing the letters etc.

0871 5270327 is the number on the letter it says to call - but this goes to Glasgow - capquest address is in Hampshire.

Will phone several more times today - just to show i have tried hard to get hold of him

[tedney]

using the insolvency service for debt collection prior to a ccj is more than enough reasons to set asside

Just a quick question, and subbing too:) Other than guidelines, is there any other factor, an act or something, that can be used to prevent DCA's from "winning" SD's?

Good Luck with CQ Anna_J

t

[debt4get]

there are numerous reasons to have sd set aside..if you dispute even a pound owed then that is enough to invalidate..if you cannot contact the named person on the sd again this invalidates...this comes under the insolvency act...most times sd are not acted upon by the dca they are simply a scare tactic..however it is best to fight them as if and when they lose it costs them money in court costs to the tune of about 300 quid...otherways are of course providing proof of debt...providing documentation etc etc

[debt4get]

these are some of the reasons you can use to set aside including the acts needed hope it helps

The Defendant totally disputes the debt.

 

The alleged creditor has not provided a valid notice of assignment

 

The alleged creditor has not provided a legible copy of the agreement that contains the prescribed terms and is executed.

 

The alleged creditor has not provided any compliant default notice as required by the Consumer Credit Act 1974

 

The alleged creditor has not provided any statements for the duration of the account (it not being uncommon that some debts are made up entirely of excessive charges

 

The alleged creditor has not provided any proof that the alleged debt has been securitised under English law

 

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 ******* via recorded delivery on the ********** (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

 

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 demand 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 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

 

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).

 

Edited May 7, 2010 by debt4get

[postggj]

thanks debt4get

 

anna

 

told you this barry davies is a ghost

 

ive done many stat demands with barry davies

 

no one has ever spoken to him:D

 

this stat demand is now history and you are £300 better off on ccrappyquest

 

ill now do the 6.4 6.5 f0rms for you

[Anna_j]

Thanks debt4get for that great info.

You were spot on about Barry the ghost. They gave me another number when I called 2nd time that wasn't even in use any more. Thanks for all your help & when should I apply for the set aside - once their 14 days is up on supplying my paperwork ?

[postggj]

ill do the set asside over the weekend

 

they wont have the paperwork

 

they never do

 

you made the request, thats the important bit

[Anna_j]

Post - have you been able to sort the set aside papers out yes? Many Thanks

[debt4get]

when does the paperwork have to be anna? if it is urgent i could probably have a go at it later today...also having read back dont worry bout charging orders..they are apparantly useless now if the house is in joint names..and if you have a good solicitor when and if you sell house you can get out of paying these scumbags nothing..will get link for you to have a look

[debt4get]

Charging Order? The myth - Page 2 - MoneySavingExpert.com Forums

have a read it should take a lot of your plate

[debt4get]

http://www.bllaw.co.uk/pdf/financeandrecoveries_0806_charging%20orders%20on%20property.pdf

and here for a concise version of charging orders

[postggj]

hi anna

 

ime on it now

 

check back tonight

[debt4get]

thanks post didnt know you back online...

[postggj]

Just Got In

 

Ime Just Finishing Off A Vt Question And Ill Be With You

[Anna_j]

ok - thanks a lot

the house is only in my name - so charging order is still quite scary

[Anna_j]

should my husband put a charge on the property to take up the equity ?

[postggj]

Please Confirm

1/ The Date On The Statutory Demand

 

2/ The Date You Received It

[postggj]

Ime Going To End This For You So Dont Mention Charging Orders Again Please

 

Try Not To Confuse Things As This Is Easy To Do

 

Just Answer My Last Questions Please

[Anna_j]

date on demand is 3rd may - received on 6th may first class post was the delivery method

[debt4get]

should my husband put a charge on the property to take up the equity ?

no just follow advice from postgjj..charging orders are a long long way down line and have now become virtually useless..have a look at the link i gave if you are worried but there really is no need...post will end this today...and that should be end of it

[postggj]

Thats All I Need Now

 

Give Me An Hour

[postggj]

Does The Sd Name A Court (local To You) Where You Can Get The Sd Set Asside

 

I Bet It Does Not

[klassykitty]

Sorry if im butting in here, but ive just had a sort through of my debt letters and i had a letter from capquest last year regarding a statutory demand for bankruptcy dated 14/01/09 for littlewoods finance £773.28, i sent them a letter asking them to provide the credit agreement, on 27/01/09 i received a letter stating my account was on hold for 28 days whilst they obtained the information required. 22/02/09 stating they had asked littlewoods finance for the information and my account was still on hold, they would contact me in 28 days unless littlewoods provided the information sooner. 25/03/09 They are still endeavouring to obtain the information from littlewoods and hope to resolve it soon.. Nothing since! I presume i should now write to ask them to set aside??

 

Anna i hope they are unable to provide your agreement too!!

[postggj]

Sd Applications Only Last Four Months So Your In The Clear Klassykitty

[klassykitty]

Is my debt forgotten or do i need to ask them to confirm this in writing??