Capquest statutory demand set aside LOST!

[uptoeyeballs]

Hi peeps!

 

Had a SD from Capquest with the usual service by post.

 

After much reading on here I decided to go for a set aside. What vould go wrong?

 

The other side didn't turn up but the judge was having none of it.

 

No agreement with my signature - Fine

Cannot agree that amount - Fine

Default notice - Not needed

Proof of assignment - The copy of their letter proves it

 

I could go on and I'm pretty much up on the arguments, but couldn't get it across in court. I don't think the judge wanted me to and was attempting to prove my defence rather than establish there was a dispute.

 

I have a few more days to file an appeal, but cannot get to grips with the process.

 

I've done my Appellants Notice and Grounds for Appeal, but do I need a skeleton argument at this stage?

 

What is different between a skeleton argument and grounds for appeal?

 

I didn't ask the judge for permission, although I see I can do this on the Appellants Notice, but is the fee really £600 (200 for permission + 400 for appeal)?

 

To be honest BR would not bother me too much, but there is a principle at stake here and I don't want CapQuest to get away with it even if they don't petition.

 

Help/links whatever to get me started much appreciated.

 

Thanks folks!

 

uteb

[cerberusalert]

Moved to the Legal Forum.

[Guest]

uteb

if poss, give 42man a nudge to see if he can help?

[nicklea]

It's difficult to give any meaningful advice without knowing what you put in your application.

[uptoeyeballs]

Hello!

 

Here is what I have put together to go with the Appellants Notice.

 

It's a mash up from threads on this site.

 

I'm not really sure how it should lokk though.

 

Thanks!

 

uteb

 

p { margin-bottom: 0.08in; } xxxx of 2011

UTEB

 

 

Grounds

of Appeal

 

 

 

 

1. The Civil Procedure Rules Part 52 state:

“(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court,”

 

 

I request the Court allow the Appellants appeal for the following reasons:

 

2. The judge was required by the Insolvency Proceedings Practise Direction 12.4 to find that there was a triable issue and not to prove the case.

 

 

"12.4 Where the debtor

 

 

(a) claims to have a counterclaim, set off or cross demand (whether or not he could have raised it in the action in which the judgment or order was obtained) which equals or exceeds the amount of the debt or debts specified in the statutory demand

 

 

(b) disputes the debt (not being a debt subject to a judgment or order) the Court will normally set aside the statutory demand if, in its opinion, on the evidence there is a genuine triable issue."

 

 

3. The court may also be persuaded by the judgment of the Full Federal Court in Spencer Construction Pty Ltd -v- GAM Aldridge Pty Ltd (1997) 76 FCR 452, 464 which stated that a dispute will be genuine if it is “real and not spurious, hypothetical, illusory or misconceived.” In the recent case of TR Administration Pty Ltd -v- Frank Marchetti & Son Pty Ltd [2008] VSCA 70 Dodds-Streeton JA held that “no in depth examination or determination of the merits of the alleged dispute is necessary, or appropriate...”.

 

 

4. Given the above The Appellant was unprepared to prove the case and sought only to demonstrate there were sufficient grounds on which to set aside the statutory demand. The Appellant submits the judge was mistakenly trying to prove the case and that the demand should have been set aside as there is a triable issue in that:

 

 

4.1 The alleged debt is not subject to a judgment.

 

 

Amount claimed

 

 

4.2 The judge was satisfied that the amount claimed was owed, however, the debt is disputed and the Respondent is also aware of this in that:

 

 

4.2.1 The alleged debt has been inflated by charges and interest by themselves and the original creditor.

 

 

4.2.2 Payments have been made to the account, possibly mistakenly, yet the alleged balance has increased despite there being no provision for interest.

 

 

 

 

The agreement

 

 

4.3 The judge was satisfied that the document provided to The Appellant by the Respondent was a valid agreement. This document was an agreement that could well satisfy s78 of the Consumer Credit Act 1974 (“CCA”), subject to the respondent being able demonstrate that any copy was true. However;

 

4.2.1 Any agreement under which the alleged debt is due would be a Regulated Agreement for the purposes of s8 of the Consumer Credit Act 1974.

s.61 of the CCA provides that:

“(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under s.60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms”

 

 

4.2.1.1 The Respondent has not produced an Regulated Agreement bearing my signature and therefore enforcement is prohibited by s127(3) of the CCA which states:

“(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

 

For the avoidance of doubt the Consumer Credit Act 2006 does not change the above legislation

 

4.2.1.2 s78 of the CCA does not apply

as the agreement has ended.

 

 

 

Default notice

 

 

 

1. The judge was of the belief that it was not necessary for the original creditor to serve a default notice and that the whole amount had become due by way of an obligation to make contractual payments. However;
   

 

 

4.4.1 The Respondent claims a default notice was issued, although doesn't state when, and has requested a copy from the Original Creditor.

 

 

4.4.2 A default notice is required to be served under s.87(1) of the CCA and as the default notice would have necessarily stated the account would be terminated on failure to comply it is not possible (as the respondent suggests) that the whole balance is due as a result of contractual payments. In addition no agreement bearing my signature has been produced to prove the original creditor or Respondent was entitled to any payments.

 

 

4.4.3 Further or alternatively, the alleged debt contains sums levied by way of penalty charges which are contrary to Common Law. Accordingly, any default notice which may have been served could not have contained accurate particulars of the outstanding debt and would therefore have been defective and invalid.

 

Assignment

 

4.5 The respondent has, just prior to the hearing, provided the Appellant with a copy of a letter purporting to be the notice of assignment. The judge was satisfied that this was sufficient and the assignment was valid and that I was not entitled to any information about the assignment. However;

 

 

4.5.1 The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. s136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:

 

 

“Legal assignments of things in action.

 

 

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

”

 

 

4.5.2 It is s196(4) that prescribes the requirements for giving sufficient notice by post:

 

 

“196. Regulations respecting notices.

 

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”

 

 

4.5.3 It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

 

4.5.4 For the assignment of a debt to be effective and so giving the Respondent a right of action a valid notice of assignment must have been sufficiently served on the Appellant using a registered postal service pursuant to s196(4) before proceedings could be commenced.

 

 

4.5.5. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual assignment, not just the s136 notice, under which the assignee derives title.

 

 

4.5.6 The Respondent has so far failed to prove the assignment and without this proof could have no cause of action.

 

4.5.7. It is further submitted that the Appellant is entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

Counterclaim

 

 

4.6 Any proceedings initiated by the respondent may be subject to a counterclaim in that:

 

 

4.6.1 The Appellant has potential grounds for action against the respondent for costs and/or damages in respect of the applicant’s pain, suffering and loss of amenity caused by the respondents excessive harassment.

 

 

4.6.2 The Appellant has potential grounds for action against the respondent for unlawful charges and interest applied to the account.

 

 

5. The Appellant also submits that decision was unjust because of a serious procedural or other irregularity in the proceeding in that:

 

 

5.1 The judge considered the Respondent's evidence, which to the best of the Appellant's knowledge, was not filed with the court. This evidence was in the form of a Witness Statement sent to the Appellant by the Respondent with a letter that stated they "may file evidence with the court", but not stating which evidence. The Appellant felt obliged to show this document and it's exhibits to the judge when requested to do so. It is uncertain whether this is/would have been the actual Witness Statement the respondent intended to, if at all, place before the court. As the Respondent failed to appear I was unable to ascertain this or indeed cross examine the Respondent on it's content.

 

 

6. The Appellant has prepared this document as a Litigant in Person due to the time limitation and the time taken to seek representation, which I expect to resolve shortly, and I therefore apologise and respectfully request the court to forgive any deviation from procedure.

 

 

7. The Appellant asserts that (i) the alleged debt is not a judgment debt, (ii) there is a genuine dispute (iii) there was a serious procedural or other irregularity in the proceeding and therefore request the appeal be allowed.

[nicklea]

uptoyoureyeballs,

 

What you have done as your grounds of appeal is really a mixture of grounds of appeal and the argument to support them.

 

It is also rather confusing to read and also - this is just my opinion - there are a number of things that are not correct.

 

I would suggest leaving out the parts about the assignment and the amount claimed. They have given you notice of the assignment by sending you the SD. The issue with the amount claimed is only relevant if it brings the amount owed below 750. Also, I would really suggest that you leave out the counterclaim part

 

Here is my suggestion - and please remember it is just a suggestion.

 

 

 

 

 

Grounds of Appeal

 

1. The learned judge misdirected himself on the issue of the enforceability of the debt due to s61(1) and s127(3) Consumer Credit Act 1974.

 

2. The learned judge misdirected himself on the issue of the need for a Default Notice under s87(1) and s88 of the Act before the Respondent could take any action.

 

3. The learned judge erred in that he failed to have any or sufficient regard to the Insolvency Proceedings Practice Direction 12.4

 

 

 

 

 

Skeleton Argument in Support of Grounds of Appeal

 

The Existence of a Written Agreement

1. This debt is regulated by the Consumer Credit Act 1974.

 

 

2. I applied for credit with the Respondent in xxxxx and an Application Form was completed. However, it is not accepted that the Agreement was reduced to writing and it is submitted that a valid agreement containing all of the prescribed terms required by the Act does not exist. The prescribed terms are given in Schedule 6 of the Consumer Credit (Agreements) Regulations 1983.

 

3. The Respondent has been invited on a number of occasions to rebut my assertion that a valid Agreement does not exist by supplying a copy of the alleged Agreement with my signature on it but has failed to do so.

 

4. As a result, the absence of a signed written agreement containing all of the prescribed terms is fatal to the Respondent's position as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of s127(3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

5. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a signed document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

The Need for a Default Notice

 

6. It is a statutory condition that prior to taking any steps towards enforcement in respect of a Regulated agreement that a valid default notice complying with the terms of the Act must have been issued. If no Default Notice is issued or the notice is bad then enforcement cannot be attempted (Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) ).

 

7. At no time have I received a default notice and, despite requests to the Respondent, the Respondent has not been able to provide any evidence that a good notice was ever posted to me.

 

Insolvency Practice Direction 12.4

 

8. It is submitted that there are sufficient arguments to demonstrate that there are genuine triable issues and that, given the authorities quoted above, there is a genuine prospect of success.

 

9. As a result, it is submitted that the learned judge erred in that he failed to have any or sufficient regard for Insolvency Practice Direction 12.4. It is submitted that there is clearly sufficient evidence that there is a genuine triable issue and that the statutory demand should have been set aside

 

I, xxx the Appellant, believe that the facts stated above are true

 

Signed

 

Dated

[uptoeyeballs]

Thanks nicklea,

 

I thought I had the grounds and argument confused!

 

Your suggestion does made sense. I'll study it carefully and compare with my own situation.

 

Having a structure/example like this is a massive help, I can now see how to shape the pieces.

 

I've been trying to get some pro bono assistance, but they can't assist immediately.

 

It seems I can now submit the notice with grounds and buy myself another 14 days in which to get the skeleton argument perfected.

 

uteb.

[nicklea]

If you are going to send in the skeleton argument seperately then I would suggest adding something like this to the grounds of appeal:-

 

The grounds of appeal are given below. More detailed argument supporting the grounds is given in the Skeleton Argument

 

 

This will make sure that the court doesn't make it's decision on whether to allow the appeal based just on the grounds without also reading your argument

[Basil Fawlty]

Too late now, I know, but is this another case of taking the advice given by, I think diddydicky and surfaceagentx20, to completely ignore SD's sent by ordinary post?

 

BF

[uptoeyeballs]

Thanks nicklea. Good advice.

 

Thanks BF. I did come across that the day after I'll filed the set aside application. There is a lot of debate about the best approach, but I think it does sway to ignoring the SD unless it was properly served.

 

uteb.

[Basil Fawlty]

I do realise of course that its easy to say ''ignore it'', but it must be very worrying when you receive one.

 

BF

[uptoeyeballs]

Ok, all ready to go!

 

If some one could confirm it would be great.

 

My fee to file the N161 is £120.

 

I'm asking the court to "vary the order which I am appealing and substitute the following order":

 

The application to set aside the statutory demand is allowed.

 

CapQuest Debt Recovery Limited shall not serve a future statutory demand or bankruptcy petition on the Applicant.

 

The Respondant shall pay the Applicants costs of [assessed by the court] within [xx] days.

 

 

 

uteb.

[uptoeyeballs]

N161 filed.

[42man]

I can't quite believe that i'm reading this....I know that judges can vary wildly, but to be frank, not having the claimant turn up should be reason enough to set aside the demand....I strongly suggest you let the OFT know about this, I can't see Capquest even filing a petition to be perfectly honest, in fact I have NEVER seen Capquest file a petition.....

[42man]

You can also mention this too - Say that it is not an appropriate debt to base a statutory demand upon as it requires a form of accounting. Statutory demands are the basis upon which a bankruptcy petition is presented. The bankruptcy petition (and in turn a stat demand) can only be based on what are called liquidated debts i.e. debts which are fixed, as it were which do not require a form of accounting. A credit card debt would need a form of accounting to calculate it and so is an inappropriate debt to base a demand upon.

[uptoeyeballs]

Thanks for looking in 42man,

 

Anyone I talk to about this can't believe either. I did feel much better in court when I overheard they didn't turn up as I thought that would massively sway things my way. It almost felt like the judge was representing CapQuest!

 

I found I was easily directed by the judge, led down a couple of blind alleys, and lost all confidence as the hearing progressed.

 

BR is no problem as there is nothing for them to have, but I don't want CapQuest to get away this.

 

....Statutory demands are the basis upon which a bankruptcy petition is presented. The bankruptcy petition (and in turn a stat demand) can only be based on what are called liquidated debts i.e. debts which are fixed, as it were which do not require a form of accounting.....

 

Can you point me where I can read up on this. I understand the words, but there is no way I could explain it to a judge!

 

Thanks!

 

uteb.

[uptoeyeballs]

Hi again!

 

We'll it's close to time to file my skeleton argument.

 

Thanks nicklea for the example.

 

My question now is do I just restate (better/more clearly and dropping the weak points) my original reasons for set aside or should I be setting out to rebut everything in their Witness Statement?

 

uteb.

[uptoeyeballs]

Hi all!

 

Been trying to read up on "liquidated debts, but not found much. Are you suggesting that they need a CCJ first to establish the amount? If, so how would that differ from the amount claimed in the SD, except for, of course, the amount should be 0 as it is unenforceable.

 

Could do with a few more pointers. Worried I'll get this wrong for myself and also encourage CapQuest to do this to other people.

 

uteb.

[nicklea]

You can also mention this too - Say that it is not an appropriate debt to base a statutory demand upon as it requires a form of accounting. Statutory demands are the basis upon which a bankruptcy petition is presented. The bankruptcy petition (and in turn a stat demand) can only be based on what are called liquidated debts i.e. debts which are fixed, as it were which do not require a form of accounting. A credit card debt would need a form of accounting to calculate it and so is an inappropriate debt to base a demand upon.

 

To be honest I would disagree with you on this point.

 

A liquidated debt is merely one that can be readily determined. This idea of a 'form of accounting' came from some poster who just turned up, made two posts and then disappeared again.

 

I really would suggest that you will not get anywhere with this.

[uptoeyeballs]

Thanks nicklea

A liquidated debt is merely one that can be readily determined

was my reading of it too.

[Ganymede]

To be honest I would disagree with you on this point.

 

A liquidated debt is merely one that can be readily determined. This idea of a 'form of accounting' came from some poster who just turned up, made two posts and then disappeared again.

 

I really would suggest that you will not get anywhere with this.

 

 

I agree. Nothing to stop you from applying for a SD and then bankruptcy on a credit card, personal loan etc.

[uptoeyeballs]

Thanks nicklea and Ganymede.

 

I can't see how the "liquidated debt" thing would work either. So I won't pursue that any further.

 

I've been through your example skeleton argument again nicklea and my case file and it looks almost spot on for what I need.

 

On the assignment, I guess realistically it has been assigned. It just surprised me how easily the judge accepted a copy of a letter they produced as proof. They could have made up that letter and I would know no better...

 

One thing I was considering adding is something like "The Respondent asserts that the whole balance would have become due by virtue of the need to make contractual payments. This cannot be the true as the Agreement has been terminated."

 

My argument is that as they claim a DN was issued the agreement would have been terminated and there could be no contractual payments. They can't have it both ways.

 

Any thoughts?

 

Thanks!

 

uteb

[uptoeyeballs]

Hello!

 

Well, pro bono isn't going to happen in my time constraints.

 

Filed my skeleton argument (thanks again nicklea for the pointers).

 

I'm assuming the court will now set a hearing date?

 

Really worried I'll mess this up and although my friends think me mad I really don't want CapQuest to get away with their antics.

 

Found a barrister that is willing to take it on. Fingers crossed I can keep costs low enough to do it.

 

Uteb

[nicklea]

If you've found a barrister then what I really would suggest - if you can afford it - is to get him/her review what you've done and see if he can come up with anything else. What he can then do is put in his ideas as an extra skeleton argument and just say at the top of it something like:-

 

Skeleton Argument on Behalf of the Appellant

 

1. This is intended to supplent the Argument and Grounds prepared by Mr uptoeyeballs

 

2. blah blah blah

 

 

Last year I was involved with a case that went to the court of appeal. It was nothing to do with consumer credit or SDs so I won't bother going into the details. I also had the additional problem that I also had to ask for an extension of time in which to serve the appeal notice.

 

Anyway, I did the grounds of appeal and my skeleton argument. I eventually got a letter back saying that I had been granted leave to appeal.

 

What I did then was to get a barrister - I was really lucky I managed to get a barrister that was involved in one of the cases that I was relying on as authority - and she said that basically I hadn't gone far enough with my argument and she drafted another skeleton argument that started off as I put above. Then in court she went through both my arguments and her own and persuaded the court that she was right.

 

I really do believe that if I hadn't had really good representation on the day then I wouldn't have got such a good result. It was pretty clear from the outset that the judgment would go my way, but at first, the court were only going to give me what I had asked for. It took the barrister to persuade the court to give me what she thought was right which was way beyond what I was expecting.

 

So, I guess what I'm saying is that if you're going the route of using a barrister then make sure that you get the most out of him/her and that you get one that is really experienced in that particular area and is used to the court of appeal as well.

[uptoeyeballs]

Thank you nicklea. You really are a star!