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

[postggj]

dont worry on the statute barred angle yet

 

they are history allready on so many issues

[UK26]

Please see post 223, before sending any letters, any errors in the letters and it could kill the request dead in the water.

Edited July 10, 2010 by UK26

[postggj]

ive ammended post 208

 

its ok now

 

you are right uk26

 

thats was an old template ive used

 

updated it now

 

many thanks

Edited July 10, 2010 by postggj

[UK26]

I would highly recommend anyone to use the template that I have adjusted at post number 223

I have adjusted it for the use for Fixed Term Loan Agreements.

 

Postggj

 

You have now totally removed the section that was incorrect,

 

There is a total of 3 templates to use depending on what the agreement was for, and for each type, the sub sections may change etc.

 

 

ive ammended post 208

 

its ok now

 

you are right uk26

 

thats was an old template ive used

 

updated it now

 

many thanks

[UK26]

Also note that at post 208,

 

You are trying to cover all 3 types of agreements within one letter,

 

This is ok, but then the sub sections would be incorrectr if used for a credit card agreement. however it would look more professional if only the section which applied to the agreement in hand was stated on the letter as i have done at post 223.

 

Let Capquest know that you mean business and not just using a standard FIT ALL template letter.

 

Its now time to get back on the job of supporting the OP with his case with Capquest.

 

KJB7575, Use the letter at post 223 send this via recorded first class post.

 

Soon as Royal Mail confirms delivery, they have 12 working days to provide a copy of the agreement.

 

If they dont, then the account is unenforceable.

Edited July 10, 2010 by UK26

[Kjb7575]

Hi UK26 and Postggj,

both of your letters sound spot on but which one do i use, and is there any significant difference between the two that would help me? Thanks for helping.

[UK26]

The below letter is spot on

 

Dear Sir or Madam:

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY OR ANY COMPANY YOU CLAIM TO REPRESENT

 

Re: Account no: xxxxxxxx

 

this letter is a formal request pursuant to Section 77 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77(4) will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

Remember, never to sign the letter in your own signature, always use a computer typed signature

 

 

Also notice that i have added

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Edited July 10, 2010 by UK26

[Kjb7575]

Hi Uk26, i don't mean to come accross thick but even though i've paid some instalments. Does that not mean i have acknowledged the debt? I've printed letter and will send it recorded delivery soon as. Thanks once again.

[UK26]

I don’t think you need to worry about that at the moment, if Capquest do mention this, say to them after seeking legal advice, that you have been advised that you need to obtain a copy of the credit agreement before you are able to deal with this matter to a conclusion.

If it’s found that the credit agreement is unenforceable by venture of the consumer credit act 1974, all this would mean is that Capquest can’t take you to court to recover the money.

 

Hi Uk26, i don't mean to come accross thick but even though i've paid some instalments. Does that not mean i have acknowledged the debt? I've printed letter and will send it recorded delivery soon as. Thanks once again.

[UK26]

Personally with my case with CapQuest, they threaded me with a statutory demand, however before they had chance to issue one, I filed a county court claim against them for a declaration that the credit agreement was unenforceable, needless to say my account is now closed.

[Kjb7575]

Thanks uk26. I'll post updates. It's allways nice to know that there are still people willing to help others for no other reason but to help.

[UK26]

No problem, if you need any further help with this, please let us know by updating this thread.

 

If Capquest have not complied with the request after 12 working days of receiving the letter, you are under no legal obligation to continue paying them any money towards the account regardless of what they claim or say.

 

I will draft you a template letter which you need to send them they have missed the deadline, which I guarantee they wont reply in time.

[UK26]

Default Letter for failure to comply with a Section 77 of the Consumer Credit Act 1974 within the presribed time of 12 working days

 

 

 

 

 

 

 

 

DEFAULT NOTICE

 

 

 

Served under Section 77 sub section (4) Consumer Credit Act 1974

 

With reference to my previous letters, I wish to draw you attention to your company's lack of compliance with my legal request.

 

[insert Date], I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 section 77.

 

 

 

A copy of which is enclosed for your purusal and ease of reference.

You have failed to comply with request, and as such, the account entered default on [insert Date].

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 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.

 

As you may not be aware , failure to comply with this request within 12 working days renders the alleged debt UNENFORCEABLE in law. Furthermore, if this non-compliance continues for a further month then a summary, criminal offence is committed.

 

Furthermore, 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 compliant credit agreement is a very clear dispute and as such, the following applies.

 

 

 

 

 

 

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

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

* may not pass the account to a third party.

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

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

 

Therefore, this account has become unenforceable at law.

 

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

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40, Protection from harassment Act 1997 section 3 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter, which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

You should also be aware that if you are unable to substantiate your claims then your behaviour will be considered harassment contrary to section 40 (1) of the Administration of Justice Act 1970, and may result in me choosing to pursue action against you.

 

 

 

Any attempt to contact me by telephone regarding an alleged debt is an offence under section 127 of the Telecommunications Act 2003.

 

Please note that I am only prepared to communicate with you in writing. Should it be your intention to arrange a "doorstep call", please remember that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Please therefore take note that, I revoke license under English Common Law for you, or your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for a tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless. Further regarding your threat that a Doorstep Collector will call the owner of this property is denying you or anybody working on your behalf access onto their estate or grounds in relation to this disputed debt, should you or any agent acting for you attempt to gain access to the estate or its grounds, then you will be ignoring your denial of access and the owner of XXXXXXXXXXXXXX will take legal steps to sue both you and or your agents for trespass, please also note that having a letterbox on the property gives you or anyone working on your behalf neither implied nor expressed rights to enter the properties boundaries, again any instances of trespass WILL lead the property owner to sue both yourselves or any agents working on your behalf.

 

I would ask that no further contact be made concerning the above account unless you can provide evidence as to my liability for the debt in question. Such evidence would involve documents such as a copy of any alleged agreement and a statement of account.

 

Take note at this stage, any legal action you may contemplate will be both vigorously defended and contested. In the meantime, please be aware that I consider this matter to be “in dispute”.

 

I await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and inform the OFT of your actions.

 

 

 

I also require you to remove the default you uploaded to my credit history file. Failure to comply with this request within 14 Days from the date of this letter will result in the immediate action taken against you.

 

I await your rapid response.

 

 

 

 

 

 

 

Yours sincerely

 

 

[shedder101]

An update fro my SD from crapquest

 

Hi Postggj and everyone else that have been involved

 

I am in court on Tue and today received an witness statement from them

 

I direct this post to postggj as i feel you might like to read what they say

 

basically not coming as i read it but dont want me to have costs

 

any advice from it for tue would help

[UK26]

I have had a look at the attachment; I started to laugh when I saw the bits about costs.

 

9 hours for travel to court???? Really, I would have thought this would have been your local court. And therefore the only costs you could claim would maybe Parking fees and about £5 for fuel.

 

I can’t see how the court could set-aside the SD in your case, You already have a county court judgement, which you have made payments against and have not yet appealed the judgement.

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/insolvency_pd.htm#IDAGZF1B

 

12.3

 

Where the statutory demand is based on a judgment or order, the Court will not at this stage go behind the judgment or order and inquire into the validity of the debt nor, as a general rule, will it adjourn the application to await the result of an application to set aside the judgment or order.

 

Therefore, unless the SD was not severed correctly, then it does indeed look as if Capquest are going to be successful

Edited July 17, 2010 by UK26

[shedder101]

as usual he didn't read it right

 

 

Research 18.00 £9.25 £166.50

 

Postage £2.67 £2.67

Miles Rate

Travel 22.00 £0.40 £8.80

Hour @1 hour min Rate

Parking 7.00 £1.00 £7.00

Hours Rate

Time hours 9.00 £9.25 £83.25

 

Other costs 3.00 £3.00

 

mins spent on phone Rate pp

Phone calls 21.00 £0.10 £2.10

 

the time cost was all the time i have spent printing, copying ect as well as the time

 

parking was court and resurch and photocopying ect

[shedder101]

god knows

 

will tell you what happens tue

 

i think stick your head in the sand approach and shred everything that comes is the best option

 

F~~K um

[UK26]

have a look at post 240 again, i have updated it.

 

Is that how you layed out costs statement out?

[shedder101]

must be that not served correctly that the judge is allowing it on otherwise why would they have a hearing and not throw my request out

[shedder101]

have a look at post 240 again, i have updated it.

 

Is that how you layed out costs statement out?

 

 

 

yes i set them out like that

[postggj]

please confirm

 

YOU ALLREADY HAVE A CCJ FOR THIS DEBT,

ILL BE BACK ON LATER AS ITS BACK TO WORK

[shedder101]

this is what i sent

[UK26]

I feel sorry for you in this case.

 

Whereas I don’t agree with the way Capquest deal and manage the debt accounts.

I believe that this case could have been handled a bit better

 

You sent a request for the credit agreement after the judgement, therefore I cant see how you can enforce them to comply with this, if they dig out the agreement and think its unenforceable, they ant going to send it to you, they have no duty to.

 

If they think it’s enforceable, then they might send it, but again no duty to

 

It would have been so much better if you had requested this before the judgement.

You really need to get the judgement appealed or set-aside ASAP

 

 

god knows

 

will tell you what happens tue

 

i think stick your head in the sand approach and shred everything that comes is the best option

 

F~~K um

[shedder101]

yes told you that some time ago but i didnt know as it s not on my credit file

[postggj]

Have You Confirmed With The Registry Trust That There Is In Fact A Ccj

 

Have You Been Paying The Court Any Money Ref This Ccj

 

If There Is A Ccj, Why Is Crappyquest Issuing An Sd, They Cant As The Account Is Terminated

 

If They Are The Creditor, They Have To Enforce Through The Court, Baliffs, Attachment Of Earnings Ets, Not An Sd