Capquest Morgan Stanley debt Statutory Demand due - What to do?

[Poolio]

I have received a letter from Capquest before christmas informing me they are going to serve a statutory demand on me around 31st December 2010. The debt in question though has been passed around a lot and never dealt with properly. I was wondering should I wait for the stat. demand or do something before? I will write a brief history of the debt and what I have tried to do to deal with it.

 

1) The debt was with Morgan Stanley originally and was being handled by Goldfish. In August 2008 I sent a CCA request recorded delivery. I didn't get a response but two months later received a statement for the debt from barclaycard who I presume it was passed on to.

 

2) April 2009 I started receiving letters from Credit Solutions re: barclaycard xxxx. What's more is that interest started to be added to the debt. I sent another recorded delivery letter, the standard 'Account in dispute' one to Credit Solutions but still they kept sending letters.

 

3) In september 2009 I sent 'account in dispute' letters again to both Barclaycard and Credit Solutions. Credit Solutions responded by saying they were no longer dealing with the account and it had been passed back to Barclaycard.

 

4) October 2009 letters started to come from Moorcroft, I sent a dispute letter to Moorcroft and they stopped dealing with the account.

 

5) I sent an 'account in serious dispute' letter to Barclaycard and got a silly response, it was clearly just a templated letter and didn't acknowledge any of my points nor answer any questions. It referred to 'the documents provided to me' even though I repeatedly highlighted I had never received any documents concerning my CCA request. I replied to them highlighting their incompetence and got another poor reply, they again stated they've fulfilled all their requirements and referred again to 'documents already provided'. They then sent me some printed 'terms and conditions' but nothing with a signature, just printed sheets. The letter also referred to the 'CPR' yet my original CCA request and my letters never reffered to the CPR.

 

6) As I seemed to be getting nowhere I just decided to ignore the debt. I got a letter from Wescot and then in the latter half of this year I have received letters and calls from Capquest and I have just refused to speak to them.

 

7) 20th December I have received a letter stating that Capquest are going to serve a stat. demand on me in the new year. Having read these forums I understand that it isn't an idle threat and they do actually serve them.

 

This debt has been dealt with so badly by every company and has also had a large amount of illegal interest added to it for over a year. What should I do next though?

 

a) Wait for the statutory demand and then apply for it to be set aside?

b) Send Capquest a letter highlighting the account is in serious dispute and has been for some time?

c) Something else?

 

Thanks for any help on this frustrating case.

[unclebulgaria67]

When did you last make a payment for this account or admitted in writing to owing the debt ?

 

When did you take out the Morgan Stanley account ?

[Sand-Dancer0191]

SAR Capquest for all details regarding this account.Including orig agreement,letter of assignment, insurances etc.Also point out that the account IS in dispute and therefor further action is not allowed by OFT rules.

ALSO read this :-

Consequences of Non Disclosure of the agreement

19. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant would need to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

20. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

21. Furthermore the courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

22. With regards to the Authority cited in point 17, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000.

 

Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6.

 

The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it.

 

The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

 

 

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order.

 

In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398

19. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order.

 

The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

 

22. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

 

 

 

The default notice

23. Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

 

 

24. It is neither admitted or 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

 

25. Notwithstanding point 19, 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)

 

26. 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

 

 

Deed of Assignment

 

27. The defendant requires sight of the deed of assignment of the debt from HSBC to Phoenix Recoveries (UK) Ltd S.A.R.L , for the avoidance of doubt the defendant denies that there has been a valid transfer of the debt from HSBC to Phoenix Recoveries (UK) Ltd S.A.R.L.

 

 

Conclusion

28. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

29. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreements unenforceable and strike out the claimants case accordingly

 

30. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable. The defendant respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant

[Poolio]

I took out the Morgan Stanley account about 11 years ago, for some time I made a payment through Baines and Ernst, the last being around 3 years ago.

[Sand-Dancer0191]

Read my last post...Chances are these docs don't excist anymore

[PGH7447]

pointless send capquest a sar, if you want to waste £10 send it to the OC whoever that was, send capquest the account is in dispute letter and state that until the cca request send on date xx is complied with ant further action will be reported to the relevant authorities

[42man]

If it was me I would not waste £10, I would wait for the stat demand and fillet their donkey in court, it has been in dispute for a while and this has obviously been blatantly ignored with no record of the dispute whatsoever......

[babybear39]

Areed. Don't waste your precious time on these numpties. We'll help if/when they dare issue the SD. I predict OFT sanctions on their way to cr@pquest re abuse of the insolvency service

[Poolio]

Thanks for all the advice and suggestions:-) As I hadn't communicated with Capquest about this matter I opted to send them an 'account in dispute' letter pointing out the account has been in dispute for well over 2 years and I've never received a response to my CCA request. I also stated that all the interest added since then should be deducted and warned them that a SD being served will clearly result in me being able to have it set aside and will incur them costs.

 

I will post on this thread again when they respond or a SD is served!

[Poolio]

UPDATE: Letter received from Capquest - Account has been placed on hold and they are requesting the agreement from the original creditor. Good luck to them in getting it!

[harrassed senior]

I have had dealings with CQ and what they will most probably send and insist answers your request, will be absolutely worthless so let us know what, if anything they send.

[silverfox1961]

Hi

 

 

Capquest have gone a little quiet now so think it is about time you reported them to the OFT if you haven’t done so already.

 

 

Please bear in mind that the template letter on the first page of this thread:

http://www.consumeractiongroup.co.uk...=1#post3422496

 

may not be suitable for all and you will have to adapt it to your own circumstances I.E

You applied to get it set aside and CQ didn't turn up

You applied and CQ agreed to discontinue

You ignored and CQ did nothing

 

 

Today the OFT set out some new guidance and sending SD's as a debt collection tool is now frowned upon.

If you want to read it, here's the link

http://www.oft.gov.uk/shared_oft/con.../OFT664Rev.pdf

 

You can complain by email and the OFT will email you back a form to sign and post back to them for them to be able to add your complaint to their list.

 

 

http://www.oft.gov.uk/contactus;jses...1D83BF0004F6EA

 

I will be sending this post to every Cagger I have on my list so you may receive it again.

[Poolio]

I have had dealings with CQ and what they will most probably send and insist answers your request, will be absolutely worthless so let us know what, if anything they send.

 

Just looking through my post history and looked at this thread. I have never heard from CapQuest again regarding this matter!

[Staraker]

Just looking through my post history and looked at this thread. I have never heard from CapQuest again regarding this matter!

 

This seems par for the course with Crapquest. Mrs S gets demands from them every couple of years or so, and each time a demand for proof that the debt was even hers resulted in another prolonged silence!