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

[debt4get]

Hi, I'm new to this. I hope some one can advise me on the following. I've recieved a Statutory Demand from capquest dated the 1st of July 2010. It is signed by Barry Davies albeit a photo copied signature. I've read a few of the posts here and they all seem quite helpful. But i'm confused as to what i should do first off and time limits. Any advice would be much appreciated.

you have 18 days in order to set this aside...you will need forms 6.4 and 6.5 can you give us a bit more info as to what the debt is for? so we can give you a lot more advice

[Kjb7575]

Hi debt4get,

The debt is from a Barclays loan i had in July 2003. Unfortunately i don't have the original details. But seem to remember it was for £5000.00. The SD is for £6123.73. I did contact capquest a while back after being duped by a telegram or something. I did pay installments totalling £850.00. But i'm self employed and work hasn't been in abundance, i rent a property with my wife and have no assets to speak of. I'm not disputing that i owe the dept but there is noway i can pay it in full or even a lump sum off at the moment. Thanks in advance.

[UK26]

Hi not had chance to read the full thread yet but some key pointers to what i always do now when i get a request for payment for a loan or credit card account.

 

1) Obtain a copy of the credit agreement, terms and conditions and statement of account.

 

 

Once received, look to make sure the agreement is enforceable, check to make sure the terms of the agreement allowed the creditor to make charges on the account for “Late Payments, Missed Payments, and Over Limit fees"

 

You will be surprised by how many agreements don’t mention nothing about default charges but still charge them to your account. In order for the creditor to make default charges on a regulated credit agreement, it must be including in the terms and conditions.

 

2) if you have been charged any default fees that are not permitted by the agreement then make a formal dispute with the creditor, If the agreement is unenforceable, also make them aware why its unenforceable and state what you would like to happen in terms of settlement.

 

the above can protect you from Statutory Demands, as its an abuse of process to issue a SD when you have a ligament dispute with the creditor and they are then forced to take action via a county court claim as apposed a SD.

 

Try to get this information i,e the documents before the SD hearing, as this will help, if you can show that you have a dispute etc.

 

How to reduce the risk of bankruptcy following a statutory demand?

 

(a) To avoid bankruptcy reduce the debt to less than £750.

 

 

(b) Offer to pay the debt by instalments.

 

 

© Make a reasonable offer to settle the debt.

 

 

(d) Apply to have the Statutory Demand set aside on the grounds that the debt is in dispute.

 

 

After the period of 21 day from the statutory demand being served the person issuing the statutory demand may begin the process that petitions the person’s bankruptcy.

 

 

To successfully get a statutory demand set aside one or more of the following must be satisfied:-

 

 

* The amount stated on the statutory demand is disputed.

 

 

* The person issuing the statutory demand also owes money. This is called a counterclaim.

 

 

* The person issuing the statutory demand is holding security that equals or exceeds the amount owing.

 

 

* The demand was issued in error.

 

 

* The amount owing is less than £750

 

 

* Execution has been stayed on a judgement debt.

 

 

* The debtor is complying with an instalment order. This would mean the debt is not actually owed as it is being paid back.

 

 

* The creditor failed to comply with the rules and prejudiced the debtor in the process.

 

 

Step 1 - So the best way of dealing with an SD is to accept the SD because it has lots of important information that you are going to need.

 

 

Step 2 - Read it carefully and decide if the particulars are correct. The debt has to be over £750 and not in dispute.

 

 

Step 3 - Write to the person named in part B of the SD informing him/her that the debt is in dispute and say why.

 

 

Step 4 - Print out an Application to Set Aside a Statutory Demand and an Affidavit in Support of Application to Set Aside Statutory Demand which you must fill in and present at the court within 18 days of being served.

 

 

I would have a read of this thread which has some very sensible advice too.

 

 

And that’s the process. If you have any doubts about how to do this then I would strongly recommend consulting a Solicitor.

Edited July 10, 2010 by UK26

[comebackjimmy]

Hi

 

One minor query; what was the date of the last payment? If it was over six years ago in England/Wales or five years ago in Scotland then the debt is statute barred and they cannot take any legal action to recover the debt.

 

I will now put forward an alternative course of action to consider and for other CAGers to comment on.

 

DCA's have frequently issued an SD in the hope of provoking a reaction from you. I am myself in possession of a number of SD's, all from one DCA. I had no recoverable assets and chose to ignore the SD.

 

Nothing happened.

 

In each case I got a follow up letter saying they were in a position to start bankruptcy proceedings, but nothing further happened other than I was back in the cycle of DCA beg/threat letters, all of which continue to be filed.

 

It is one thing to threaten bankruptcy as the SD is easy to download, fill in and serve (by the way did arrive by any sort of special delivery or a real person, or was it second class post? If they were serious they would get it properly served so they could prove you had received it). It is another to pay out the fees that are subsequently required to make someone bankrupt.

 

Far better from the creditor's point of view to go for a county court judgment because it is ultimately cheaper to do and if successful does not involve any other creditors.

 

If you have little or no assets they would be foolish in the extreme to make you bankrupt, as they would not get back what they have put in to get you there and any assets that get put on the table by the bankruptcy must be shared out amongst all your other creditors, of whom they likely do not know much about.

 

From my own experience I feel they are unlikely to follow through the threat and you should therefore consider ignoring it.

 

Having said that if you have good grounds for getting the SD set aside you can make some money out of the costs of carrying out the set aside which would be fun.

 

Interested to see what other CAGers say.

[Kjb7575]

Hi thanks for reply,

My last payment was in May this year. I really don't want to ignore this and from what i've read it would be unwise to do so. In a nutshell i just can't afford to pay this debt at the moment. I just want to know the best way forward from here.

[UK26]

Read Post 203

 

This will not only give you some space, but could save you some money aswell, its really important to get a copy of the credit agreement.

[postggj]

Last Payment May This Year

 

Was There Ever A Six Year Gap

[postggj]

Your Address

 

Date

 

Dear Sir/Madam

 

Re:− Account/Reference Number 4563210025897412

 

This letter is a formal request pursuant to s.77 TO S.79 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.

 

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.

 

We look forward to hearing from you.

 

Yours faithfully

 

 

print your name

Edited July 10, 2010 by postggj

[UK26]

Does not matter now, since limitations act wont apply, could hardly claim that the payment in may was in error.

 

Last Payment May This Year

 

Was There Ever A Six Year Gap

[postggj]

FOLLOW THIS THREAD

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/267130-hand-delivered-statutory-demand.html

[postggj]

Does not matter now, since limitations act wont apply, could hardly claim that the payment in may was in error.

 

 

MAY I ASK WHY THE LIMITATIONS ACT WONT APPLY

 

AS SOON AS SIX YEARS HAS PASSED, THATS IT,

 

EVEN IF A PAYMENT HAS BEEN MADE AFTER THE SIX YEAR PERIOD

[UK26]

Wrong, say for example 7 years had gone and you had paid noting to the account, then on the 7th year you make a payment on the account for say £10.00

 

The 6 years will start again from the date of last payment, which in this case was May 2010

[postggj]

I Must Disagree And Checking Regs

 

If A Payment Is Made 5 Years 364 Days Into A Dca Hands, Then Yes, The Statute Of Limitations Would Restart But If Six Years Have Gone By, Its End Game

 

Any Chance Of A Link

 

Ill Be The First To Put My Hands Up If Wrong

 

ITS 12 YEARS FOR A MORTAGE

[UK26]

I will get my book out and read up, and get back to you.

 

I Must Disagree And Checking Regs

 

If A Payment Is Made 5 Years 364 Days Into A Dca Hands, Then Yes, The Statute Of Limitations Would Restart But If Six Years Have Gone By, Its End Game

 

Any Chance Of A Link

 

Ill Be The First To Put My Hands Up If Wrong

 

ITS 12 YEARS FOR A MORTAGE

[postggj]

The Limitation Act 1980 | Debt Advice | Payplan

[Hardupnotfedup]

If there is any period of 6 years where no payment or acknowledgement of the debt in writing has been made then it is Statued barred

[postggj]

Correct

[UK26]

http://www.bdl.org.uk/images/25_liability_for_debts_and_the_limitation_act.pdf

 

 

If the creditor can prove you wrote to

them admitting the debt, or you or anyone else

owing the debt made a payment, then the six

year limitation period would start running from

the date you last made contact or made a

payment.

 

However this document does state

 

If you have started to make payments on a

debt where there was more than a six-year gap

then it is probably unenforceable.

 

 

i still think, that its enforceable if you make payment after 6 years.

[postggj]

Thats Correct

 

A Debt Is Statute Barred If A Period Of Six Years Has Passed

(five In Scotland) And No Payment Or Acknowledgement In Writing Has Been Made

 

If Acknowledgement Is Made Within The Six Year Period, The Statute Of Limitations Would Start From Then

[UK26]

It does appear you are correct in what you are saying so apologies to you on this point.

i was on the understanding that if any payment was made then the time would start again, even if 6 years had gone or not.

So sorry to Postggi

[postggj]

BELIEVE ME THERE IS NO NEED TO APPOLOGISE

 

THE SITE TEAM QUITE OFTEN RAP MY KNUCKLES

 

AFTER ALL

 

its the only way we learn:grin:

 

me included

[Kjb7575]

Hi and thanks.

I've read all your replies, i'm not altogether sure if there was a gap of 6 years but there is a good possibility. I've prepared my letter for request, thanks Postggj. Do i send that soon as?

[UK26]

might be worth tweeking the letter as you are not sure if there was a gap of 6 years.

 

 

This one is for a Fixed term loan agreement.

 

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.

 

 

The template letter at post 208, contains an error

 

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(6) will apply.

 

There is no Sub section 6 of Section 77, it should be

 

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.

Edited July 10, 2010 by UK26

[postggj]

use my one in post 208

 

ive ammended it slighly and it leaves them no room to move

[postggj]

enclose the bit at the top

 

just cut and paste it in

 

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