help with capquest

[avamaria]

I need help please. I have used advise given to other using this service having received a CCJ papers from this organisation for a debt I jave not acknowledged and have disputed. I have placed a 28 day defence holding position and wrote to capquest requesting CCA etc. They have replied advising that there is no CCA at Natwest don't require that for overdrafts and sayingthat I need to pay £10 for subject access. Furthermore, I only had 28 days and whilst I sent my correspondance recorded it has took them over seven days to reply with just that.

Given they have said I have defaulted there is no signed agreement and this is a purchased debt. Also if they are taking me to court why do I need to pay for the documentation - surely they have to give me full disclosure.

What do I do next here - is the debt enforceable and as they are making it difficult for me to get the detail in time to meet 28 day deadline.

[cerberusalert]

Moved to Legal Forum.

[avamaria]

Hi - is there anybody that can help with my capquest issue

[silverfox1961]

Hi,

Just by my replying will "bump" your thread to the top of the list.

 

I am not an expert but I think you can use Civil Procedure Rules(CPR) 31.14 to get them to disclose their case documents.

 

Can you post up the Particulars of Claim (poc)

[avamaria]

Capquest have issued a CCJ saying that I have broke my agreement with Natwest and with them. Yet I made no agreement with them - I have disuputed the debt. I followed advise previously given to other susing this forum and when I have asked for a copy of the agreement and all other documentation etc (I used a pre-defined letter). The replied saying it was a purchased debt, their was no credit agreement with Nat west as it was no required by themn (ie Natwest). And if I want any more information I have to £10 for a subject access request. I only have 8 days left before the 28 days lapse for the defence and I have nothing from them. I cannot see how firstly the can charge me for soemthing that I should be entitled to for free in terms of disclosure. Also how can they proceed with a CCJ where no agreement existed.

[avamaria]

this is a copy of the letter I issued to them early august

 

 

I have received the Court claim filed by your Company . To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

The information must be furnished by the 12th August 2010, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with National Westminister Bank.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial Breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

I would appreciate your due diligence in this matter.

I await your rapid response.

[avamaria]

Hi is there any update, I would be grateful for any help at al, as I am now running out of time and do not know what best to do

[lord_tiger_putin]

Hi is there any update, I would be grateful for any help at al, as I am now running out of time and do not know what best to do

 

I am not an expert on this but do know that they have to provide you with the docs when making a CPR request (no need for a SAR). It will certainly count against them for not doing it if it comes to court. What you have send them is the appropiate CPR request.

 

Here is a quote form another thread:

 

It seems to me that claimant have not provided all docs you requested until the 11th hour and still haven't produced a copy of t&c's and therefore putting you at a severe disadvantage. Was the copy docs requested under CPR 31.14? I appreciate there is little time to file a defence, but it seems that you do in fact need more time. Why not contact them Monday and try to get their agreement to an extension of time to file your defence under CPR 15.5

 

15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

 

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

If they agree, fine. If not you could request an extension by application, telling claimant you will do so and claim costs.

Just another suggestion to give some more time to prepare a proper defence.

R

 

Maybe someone else will also respond but I think there is someting like an embarrassment defence if they do not send the documents after a CPR request. I know the situation when they do not respond to a CPR request has been discussed and what you can do but I cannot find that thread, will post it if I do find it.

[lord_tiger_putin]

Capquest have issued a CCJ

 

Just for claity and to eliminate confusion, Capquest cannot issue a CCJ. CCJ is the judment issued by the courts if found in favour of the claimant. They issued a Court Claim, it is not a CCJ yet, it can only be one after the court hearing.

[lord_tiger_putin]

this is a copy of the letter I issued to them early august

I have received the Court claim filed by your Company .

 

Just to clarify, did you send the CPR request to Capquest? It should go to the solicitors who isued the claim. A quote from another thread to clarify the dates and details:

 

The CPR requests should go to the solicitors acting on behalf of the Claimant. These have seven days to respond to a CPR 31.14 request.

 

Subject Access Requests go to the original creditor - they have up to 40 days to cough up what they have..

 

So if Aplin's have issued the summons on behalf of the Claimant they shoulf have the documents to hand which they say will prove their case - so seven days it is. They cannot procrastinate and prevaricate.

 

I would send another Subject Access request immediately to the original creditor - if you have not alreasy done so.

 

 

 

[avamaria]

Thanks. Firstly, I am already in the 28 days as the forms came from the court but capquest have delayed response to the CPR ie I sent it recorded delivery. Also the forms from the court told me all queries to capquest. HOWEVER .... I copied the CPR request to their solicitors (HL, I think) at the same time as capquest ie ie sent the CPR to both, only capquest replied. I have to submit my defence to the court by by next week, and I am not sure where I now stand and which course of action to do next. Do I demend the papers and send the defence anyway, demonstrating that they have deliberately delayed my ability to defend. I sent my correspondance recorded, they took over a week to reply ...

Also capquest have admintted there is no agreement and the debt is a purchased one, although as you know they have sent me nothing.

Really appreciate your advise

[lord_tiger_putin]

Thanks. Firstly, I am already in the 28 days as the forms came from the court but capquest have delayed response to the CPR ie I sent it recorded delivery.

 

Did you request an additional 28 days? You can do that by telling them:

 

”As I am unable to fully plead my defence until I have the requested copies I would ask you to agree under CPR 15.5 to extend the time for filing the defence by a further 28 days. Should you not agree to this request, I will have no alternative but seek an extension by application and will be seeking my costs of such" – Quote from RobinWayRobinme on another thread.

 

Also the forms from the court told me all queries to capquest. HOWEVER .... I copied the CPR request to their solicitors (HL, I think) at the same time as capquest ie ie sent the CPR to both, only capquest replied.

I assume this was send recorded as well? Just keep it for the records – you could need it later.

 

I have to submit my defence to the court by by next week, and I am not sure where I now stand and which course of action to do next. Do I demend the papers and send the defence anyway, demonstrating that they have deliberately delayed my ability to defend. I sent my correspondance recorded, they took over a week to reply ...

They are required to respond to a CPR request:

 

You can send them this:

 

Dear XXXXXX,

 

 

Thank you for your letter of xxxx in which you state that you feel that you do not have to respond to my CPR 31.14 request for documents.

 

I feel that my request was reasonable in view of the fact that, in order to justify issuing proceedings, the supporting documents should already have been in your possession.

 

However, as I am unable to fully plead my defence until I have the requested copies I would ask you to agree under CPR 15.5 to extend the time for filing the defence by a further 28 days.

 

Should you not agree to this request, I will have no alternative but seek an extension by application and will be seeking my costs of such.

 

Please note that should you fail to agree to an extension of time for the filing of my defence and should you fail to comply with my request for documents, I will also make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours sincerely

 

 

You are stating that you have to file the defence by next week? Add some time limits to the letter and if they fail, go ahead with the action. I am using the assumption that you haven’t requested the additional 28 days. Also, I would copied their solicitors in again, just to be safe.

 

 

Also capquest have admintted there is no agreement and the debt is a purchased one, although as you know they have sent me nothing.

My opinion about these people is that they RELY on people being IGNORANT and unaware of the law, procedures and their rights. Therefore, they embark on stuff that they cannot win with the hope that they will get the desired results by default. Sadly, most people do not know their rights, the law, etc. And they succeed. On the other hand, if you do know these things, it can be pretty easy to defend yourself.

 

It seems that they have nothing and are trying these tactics get around it and trying to fool you or to get you to believe they can do what they claim. Only my opinion but I think it is clear they are trying diversion.

[lord_tiger_putin]

I would suggest to try to get the documents and if you cannot, to following these routes, the embarrassed defence I mentioned earlier:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?217553

http://www.consumeractiongroup.co.uk/forum/showthread.php?194802

 

The first link has an extensive example of filing such a defence which you can alter to suite your needs.

[avamaria]

Hi, again , thanks.

Am I misunderstanding, when I replied to the court which indicated I had 14 days, and I could ask for 28 days to prepare for a defense. Therefore, I completed the forms and requested the 28 days - which I thought started from the date of issue from the court. On the same day I returned that I wrote to both capquest (copying HL solicitors). Are you saying that I can request a further 28 days. Its just that I am out of the country from next week meaning that if I don't submit a defense, and it seems unlikely that I will get anything back in time from these people to do so I could get a CCJ.

[lord_tiger_putin]

You can request ANOTHER 28 days but there must be a reason for it and it is usually been agreed between the 2 parties. The other party do not have to agree and you can then make a request to the court, but they usually do because the court will frown upon it if they don't. For them not to respond to your CPR request is sufficient reason to ask or apply (if they refuse or do not respond in time) for it. All this go to be seen as being reasonable, therefore you should try to be reasonable (you were so far and writing again for the docs will also proof that) and so should they. The court would expect that. Therefore it is always good to try to get things resolve by negotiation and that is the reason for keeping on writing to them. Seeing that you will be out of the country, it will be unreasonable of them to expect you to post poned that so that you can continue to negotiate with them and therefore I would suggest to file the Embarred Defence before you go, otherwise they will get a judgment by default. Should it be asked later on why you didn't continue to try to get the docs, then you can state you have done all you could in the time you had available.

 

Hope this makes sense and please remember it is only my interpretation of what I have read. You should definitely file a defence to prevent a judgement by default and at the look of it, you can win. You can alter the defence on this link, it can be less complicated but it will ensure that you do get a defence filed:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?217553-link-needed-embarrassed-defence-ref-no-reply-to-cpr-request

[avamaria]

Thanks so much for this. I am extremely grateful

 

Do I attach to the court the copies of the letters I have issued and also explain to them that I have tried to resolve this before I have I have gone away to achieve the initial 28 day deadline?

[lord_tiger_putin]

Thanks so much for this. I am extremely grateful

 

Do I attach to the court the copies of the letters I have issued and also explain to them that I have tried to resolve this before I have I have gone away to achieve the initial 28 day deadline?

 

No, just file your defence similar to the example. These things come later, i.e. witness statements, etc. Make sure you do get this clearly over when the time comes. It is possible to alter your defence later should new documents becomes available but do not give them the day of light.

 

I will also strongly suggest that you do send a SAR to the original creditor, there can always be useful information becomes available which you can use down the line! I have seen a number of testimonies about that.

[lord_tiger_putin]

On this thread is a simpler defence which you can look at.

 

Remember, yours is an overdraft, you do have a CCA 1974 for that. Your CPR was for a credit card or loan but they should still have sent the relevant docs.

[nicklea]

Don't forget that they don't need all the same documentation as for a loan or credit card.

 

A strong defence that you do have, as long as you did not communicate with capquest before the court case is the notice of assignment - or rather lack of it.

 

Section 196(4) is your defence, have a search on the forum for some of my recent threads

[avamaria]

On this thread is a simpler defence which you can look at.

 

Remember, yours is an overdraft, you do have a CCA 1974 for that. Your CPR was for a credit card or loan but they should still have sent the relevant docs.

 

 

Thanks for all your help. But sorry I just now need to know what I do next. Sent everything recorded delivery, had a letter from the court saying received defence and forwarding to Capquest the 28 days is now up and I have heard nothing from either capquest or HL solicitors, NOTHING - no evidence of debt no achknowledgement of the recorded delivery correspondance .... what do I do now??? Do I need to submit anything else to court etc??

[avamaria]

Also, if they do not need CCA what would they need to provide, I have received nothing now since I got the original CCJ papers. If they do not provide me anything to complete a defence and have failed to contact me or acjnowledge correspondance can/will a judge rule in their favour or does the Embarrassed defence stand??

[lord_tiger_putin]

Also, if they do not need CCA what would they need to provide

 

They need a valid Note of Assignment (NoA).

 

A debt is considered to be an asset belonging to a creditor, therefore it comes under the Property Act 1925. Any creditor can sell an asset in the same way that you can. In the case of certain assets such as debts a third party (the debtor) is involved. The Property Act, section 136 specifies that the third party must be advised by a Notice of Assignment.

 

In other words you must have received a notice of assignment from both the assignor, and the assignee, for it to be a legal transaction...you can also force them to prove this in court. Section 196(4) requires that it must be served via recorded mail.

 

For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on the Debtor using a registered postal service pursuant to s196(4) before court action was commenced.

 

Therefore, unless you received a NoA via “signed for” or “special delivery”, and if you did not acknowledged that you did received it in any communication, the sale was illegal and Capquest do not owe the debt and they cannot take you to court.

Edited September 17, 2010 by lord_tiger_putin

[lord_tiger_putin]

Do I need to submit anything else to court etc??

 

No, Capquest will have to inform the Court that they want to continue and the Court will inform you, that is, if they decided to actually do it.

 

Edited: This would be when not defending:

"As the defendant, if you do not send a defense in to the court, the claimant can ask for an order to be made against you. "

 

Seeing that you did filed a defense, the court will send you an allocation questionnaire.

 

 

In the meantime you can send Capquest this:

 

 

your address

their address

date

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxxxx

 

Re:- Compliance with the practice direction (PD) on pre-action conduct

 

You will be aware that since the introduction of the General Practice Direction (PD) on Pre-action Conduct introduced in April 2009, compliance with the general pre-action protocol in now compulsory, even in cases which will be most likely be allocated to the small claims track.

 

This allows the court to take into account the conduct of parties at all stages of litigation before the start of any court case. In every case where the matter is likely to be dispute, the court will expect the parties to have exchanged information before starting a court case and to have given the other party a change to settle the claim. If this is not done the offending party may be asked an explanation and ordered to pay costs. Furthermore, the court may also suspend a court case until steps which ought to have been taken are taken.

 

I made a request under the Civil Procedure Rule (CPR 31.1) towards you on xx/xx/20xx regarding this account, requesting you to provide me with the information detailed in that letter. As to date, you have failed to comply with my request and therefore you are in breach of the General Practice Direction (PD) on Pre-action Conduct. I concluded that you refused to comply with the General Practice Direction (PD) on Pre-action Conduct and I will bring it to the courts attention, should this matter actually proceed any further.

 

Yours sincerely

your name

 

 

Edited September 17, 2010 by lord_tiger_putin

[lord_tiger_putin]

Also, if they do not need CCA what would they need to provide, I have received nothing now since I got the original CCJ papers. If they do not provide me anything to complete a defence and have failed to contact me or acjnowledge correspondance can/will a judge rule in their favour or does the Embarrassed defence stand??

 

The judge will make no ruling until a hearing, should it proceed to that then there are also some very good defences you can use regarding the lack of the NoA but I would suggest to sit and wait to see what Capquest do next, unless someone else suggest differently.

[avamaria]

The judge will make no ruling until a hearing, should it proceed to that then there are also some very good defences you can use regarding the lack of the NoA but I would suggest to sit and wait to see what Capquest do next, unless someone else suggest differently.

 

 

Thanks for all of your help with this. I certainly have not received any correspondance that I have signed for, and when they sent some-one to give me a statutory demand I sent them packing and refused to accept it. No doubt if they had the NoA they should have sent it by now. If they do not reply to the court what happens then does it just fester or can this just go on forever??