capquest statutory demand

[mellyob]

Hi i wonder if anyone can help i have been having problems with capquest over a halifax c/c from 2002 the debt was bought by capquest in 2006 and according to them i paid £40 towards the debt in july 2006 after i had sent them a satute barred letter, i have no record of this payment at all. today i received another letter and attatched is a statutory demand . The debt is now £2400 which i would never of been offered that much credit in 2002 please can someone help before they take this further

[dx100uk]

type in capquest in the advance serch top right

 

they issue these like confitti.

 

dx

[RoyalIrish]

Make them prove the alleged payment, I would probably be correct in saying that this is pure fabrication on their part.

 

It is not unheard of that some of the more 'dodgy' of the DCA species will blatently lie about payments to the debt in order to thwart any Statute Barred claims.

 

Report them to the relevant authorities because this is fraud and deception!

 

CapQuest's SD's are very simply handled, someone will be along to advise soon!

[harrassed senior]

Hi, Ok as said, they issue these quite often and mostly they are flouting OFT Debt Collection Guidelines. Unfortunately many people do not know their rights, and get scared into paying them what they cannot afford.

 

CAG can help you every step of the way.

 

Firstly, keep all communications in writing and do not telephone or answer their calls.

 

It is important to understand that an SD can be issued by anyone that can download the forms from the Internet, but, that said it is best to deal with them, there are 2 ways, ignore, or get set aside. Given your circumstances I would start the set aside action in motion and they will probably run a mile!

[harrassed senior]

Phantom payments to re-set the SB clock are becoming more and more a feature in the DCAs' list of threats, but it is for them to prove the payment not for you to prove you made no payment.

 

You have 18 days from the date of receipt of the SD to start your 'challenge'.

 

How was the SD delivered, normal post, recorded delivery, delivered by hand?

 

Have you ever sent a CCA to Crapquest?

 

When did you send the SB letter?

 

When was the last payment made that you can be absolutely sure of?

[whyme-agen]

About 4 years ago Capquest made contact with me regarding a debt they had purchased from NatWest of £7500

 

I wrote and told them that they had made contact with the incorrect person and that I was not liable for the debt.

 

Next letter from them wanting a crime reference number.( No chance)

 

Next letter from them wanting details of my identity. ( Definitely no chance )

 

Next came a letter from their so called solicitors telling me of impending court action ( LOL )

 

The last letter, which I must admit had me in stitches, was supposedly from the Managing Director himself, offering me a once in a lifetime chance of paying off this debt.

 

This is how it worked.

 

I agree to pay a monthly amount of MY OWN CHOICE, and Capquest will pay a percentage of that. In this way I can reduce the total owed by about £3000, as all previous interest has been removed and no further interest will be added.

 

If I lend someone £20, then I want £20 back, not 10 or 15.

 

Don't let these buffoons cause you to have sleepless nights

[mellyob]

the demand was sent normal post, i doubt very much i made a payment after 2003 as i lost the plot for a while, i have sent a cca off today and also asked for proof of this last payment they are claiming i made. it would seem i have to get this set aside now am i right? and how on earth do i do it

[mellyob]

hi the sd was sent normal post, i have sent a cca of today recorded delivery and also asked for evidence of this payment i made?? i sent the satute barred letter in march this year when i first heard from them they supposedly took debt on in 2006 i have not heard from them till now. The last payment would of been no later than 2003 and most probably to halifax themselves.

[BRIGADIER2JCS]

Subbing with interest.

[42man]

Excellent.....you get this set aside and claim your costs in the process....did you keep a copy of the statute barred letter and recorded delivery slip ?

[42man]

You'll need forms 6.4 (set aside) and 6.5 (witness statement)....If you want some help then I am happy to do this, on one condition......you write/send an email to the Office Of Fair Trading to tell them about this...

[mellyob]

yes please i would appreciate your help, im sure ive kept the letter and slip as i didnt know about statute barred until i went on the money saving forum and they tell you to keep everything. I would be only to happy to drop the OFT an email about them as well !

[42man]

OK....you have got 18 days from the date that the demand came into your possession to submit your 6.4 and 6.5 + all letters / recorded delivery slips.....can you give me a couple of days to do this ? I suggest you have a good read in here first, but be aware that some legislation has changed... - http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-DCA-Legal-Successes also can you type up the Particulars Of The Claim (but don't be too specific with amounts and dates as Capquest do read these forums)

[mellyob]

thats fine i got the letter yesterday, do you mean that you want me to post why i am disputing it and previous correspondence with them, i only have four letters from them ive replied three times but first one i mistakenly didnt send recorded

[42man]

No need to post up any letters here, but did you send the statute barred letter recorded ? if not then don't worry as long as you have got a copy of the letter.....as for the Particulars Of The Claim, they will be on the stat demand...

[42man]

OK use this link here to help out on filling out the 6.4 - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489

You can find form 6.5 on the net just google '6.5 form insolvency'

Type the date that the demand came into your posession

Do not admit the debt due to a substantial dispute to which the claimant has failed to respond to.

The defendant avers that the debt is barred by the Statute Of Limitations Act 1980

The defendant wrote to the claimant on (date) and stated that the debt was indeed barred by the Statue Of Limitations Act 1980

The claimant claims that a 'payment' of £40 was made in (date) and despite requests has provided no proof whatsoever of the origination of this 'mystery' payment.

The defendant vehemently denies making any kind of payment whatsoever.

The defendant believes that the claimants use of a statutory demand is trite law and merely a tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of the process. I believe the claimant will not turn up to court to defend this demand and it is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the Insolvency Rules.

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act.

The claimant has failed to provide any deeds or notices of assignment, any default notice as required under the Consumer Credit Act, nor any statements for the duration of the agreement.

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement.

SECTION 78 (1) CONSUMER CREDIT ACT 1974

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

The Consumer Credit Act in section 78(6) States that

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

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

The Consumer Credit Act 2006 (Commencement No. 2 and Transitional Provisions and Savings) Order 2007 (No. 123 (C. 6))

Citation

1. This Order may be cited as the Consumer Credit Act 2006 (Commencement No.2 and Transitional Provisions) Order 2007.

Interpretation

2. In this Order “the 2006 Act” means the Consumer Credit Act 2006.

Commencement

3. — (1) The provisions of the 2006 Act specified in Schedule 1 shall come into force on 31st January 2007.

(2) The provisions of the 2006 Act specified in Schedule 2 shall come into force on 6th April 2007.

Transitional Provisions

4. Subject to article 5, section 1 of the 2006 Act shall have no effect for the purposes of the 1974 Act, in relation to agreements made before 6th April 2007.

5. Section 1 of the 2006 Act shall have effect for the purposes of the definitions of “debtor” and “hirer” in section 189(1) of the 1974 Act wherever those expressions are used in—

(a)

sections 77A, 78(4A), 86A, 86B, 86C, 86D, 86E, 86F, 129(1)(ba) 129A, 130A and 187A of the 1974 Act;

(b)

section 143(b) of the 1974 Act in respect of an application under section 129(1)(ba) of that Act; and

©

section 185(2) to (2C) of the 1974 Act insofar as it relates to a dispensing notice from a debtor authorising a creditor not to comply in the debtor's case with section 77A of that Act,

in relation to agreements made before 6 April 2007.

REFERENCE TO CASE LAW

1. As the creditor has not provided the credit agreement Wilson v First County Trust Ltd [2003] UKHL 40 states that:
   ‘….the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement ………….. was unenforceable. The statutory bar on its enforcement extended to First County Trusts's right to recover the total sum payable on redemption, which included the principal as well as interest.’
   

SUMMARY OF WILSON v FIRST COUNTY TRUST LTD (2003) UKHL 40

THE WILSON CASE MADE IT CLEAR THAT IN THE EVENT OF NO ACCEPTABLE CONSUMER CREDIT AGREEMENT THEN THE CREDITOR COULD NOT RECOVER MONIES OWED UNDER ORDINARY CONTRACT LAW REGARDLESS OF WHETHER THEY COULD PROVE THE DEBT EXISTED OR NOT – THIS WAS THE DECISION OF THE HOUSE OF LORDS AND SHOULD THEREFORE BE BINDING IN THIS COURT

DEFAULT NOTICE

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been provided
  

• It is 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
  

• Notwithstanding the above points, 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)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• 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
  

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the notice of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

1 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.

2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the bankruptcy petition, and therefore any assignment has not been perfected in law.

I gracefully request that (and if it is in his powers)

. 1 - The Judge dismisses the demand on the above evidence as this claim is unfounded, unlawful, vexatious and frivolous and has been substantially disputed.

2 -The judge grant me a Tomlin Order or Bankruptcy Restraining Order in the likely event that this so called ‘Debt Collection Agency’ can NOT attempt to engage in frivolous and unlawful litigation

The Judge orders the claimant to pay my full costs + compensation in light of the distress and damage to my family and reputation in support of this I quote –

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner). Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

I believe the facts herewith in this form are true.

[42man]

Once you have done this....(are there any other aspects you want to add ?) you need to take it to your local county court (but check whether they handle bankruptcies / insolvencies as not all county courts do) - http://hmctscourtfinder.justice.gov.uk/HMCTS/

 

The defence will be put in front of a judge for a potential hearing....and to be honest you will get it set aside IMHO....your costs will need to be submitted so they are in the court file at leaat 24 hours before the hearing..

[mellyob]

do you think there anything i can add to it? i really havent got a clue about this sort of thing why is the account now on hold for 28 days i sent the cca letter on the 15th so how long do they have to respond to that? also what costs do i give in to court? so many questions sorry

[silverfox1961]

Hi

One thing I didn't see advised was for you to ring the very elusive Barry Davies. If you try 3 times and fail 3 times, that is also grounds for getting the SD set aside.

 

If you do phone, do not give any personal details to the person you speak to (I really wanted to say phone drone but I'm far too polite ), just say you wish to speak to Mr Davies. If, by some minor miracle, he actually answers just tll him that you are applying to get the SD set aside.

 

I have a thread going on this issue,

Would you please go and add your name to my thread and if you can, copy this thread link.

http://www.consumeractiongroup.co.uk/forum/showthread.php?306742-Capquest-and-Statutory-Demands

 

I will add this thread to my personal list as well

[42man]

So they are sending this statutory demand to your old address ?

 

They say the account is on hold...but they haven't said 'we are withdrawing the statutory demand and will not instigate bankruptcy proceedings, if it was me I would be carrying on with the set aside....

 

No need to worry about costs at this stage.....but when you get a date for a court hearing, then no doubt you would have done your research into the Consumer Credit Act and Insolvency Act, so you would be claiming (for example) 10 hours of research into Insolvency laws @ £9.25 per hour, and 10 hours of research into the Consumer Credit Act @ £9.25 per hour + postage costs, copying costs, and mileage @ 40p per mile

[42man]

Foxy makes a good point....you can also add that Mr Barry Davies is non existant, although ringing them 3 times to state that you will ONLY speak to him (just to briefly tell him that you will be setting aside the demand and claiming your full costs back at court, and that they shouldn't be attempting to collect a debt when there is a clear, substantial and unanswered dispute and that it is a clear abuse of the Insolvency service)

[mellyob]

yes probably should never of opened letter but dont really want them turning up at old address scaring my elerly neighbour to be honest but they still only have that address, strangely there is nothing on my credit report about his debt either. thankyou for all your help i will proceed with the set aside still as there is not mention of the stat demand in that letter i will get everything printed off today i hope. silverfox1961 has suggested i ring barry davies so i will try that as well it can only help surely. i really hope that my set aside will be won as ive been looking at other threads where people havent won and i dont understand them at all !

[silverfox1961]

I don't know what threads you have been looking at as I only know of two lost with many-many more won, especially with Capquest. If you want, I can link yo to the threads I have in my personal list

[42man]

The fact that they have just SENT a stat demand as opposed to actually serving it shows what a frivolous approach it actually is....you need to be showing the judge just how angry and upset you are at having to deal with this.....you should also spend some time researching what has been said in the defence...

[mellyob]

yes i definately will how soon can i take the documents to the court do i wait 12 ? days from the cca for capquest to reply with a credit agreement