Capquest Statutory Demand ***WON***

[Jasper1965]

In the covering letter they give the opportunity of paying back in installments.

 

I bet they do I wonder if it's anything to do with the following statement?

I am simply moving the burdon of proof to them to prove that I owe the debt.

[Bobity]

They also say that they sent me 'the original terms and conditions applicable when the agreement was signed along with the terms and conditions applicable when the account defaulted'. Is it possible that the t&cs can be different, and applicable, at time of default from those at time of signing? Surely if different t&c applied, they would have to be agreed. In any case, I don't think I ever had any t&cs, just the credit agreement.

[miss muppet]

Bobity, did they send you the T & C's and more to the point are they part of the agreement? Remember that 127(3) of the CCA 1974 says that they have to be part of the original signed agreement, they cannot be referred to in a separate document, that only changed with the 2006 amendment, have a look at my thread, think its part of Hurstanger case law i.e. that it must be within the four corners of the agreement, I don't think T & C's at time of default are relevant but may be wrong, no doubt someone will correct me if so.

 

As far as their witness statement goes, they did exactly the same to me, remind the Judge that they are the ones bringing this action and therefore it is their responsibility to prove that the agreement is enforceable.

 

I wonder if one of the site team could comment on this latest tactic of Capquest with Statutory Demands, I thought this at the time of my case, is it possible that you could send the court your own witness statement refuting every point they make before the hearing so you are not faced as I was by the Judge saying but this wasen't in your affadavit/application to set aside?

[Bobity]

Hi

 

The documents they sent me when they responded to my CCA request did not contain the T&Cs. They sent me copies the same documents at a later date and these also did not contain the T&Cs. They only included them when they sent further copies some 2 years after the original request and just before they issued the SD.

 

What constitutes a letter of assignment? Is there a particular form this document should take or is it just any letter saying that the debt is now theirs. All of this legal jargon is getting above me and tying me in knots. I am seriously considering withdrawing and making payments even though I think I am in the right it's just really getting me down. Thing that worries me that they may do the same again and put on loads of interest. They only took it all off because of this fuss i am making, not because they had made the mistake.

[miss muppet]

Requirements for service of notices of assignment - Law of Property Act 1925

[Bobity]

Hi miss muppet

have read your fab outcome - thanks for the link! It is very useful as your daughter's case does sound similar to mine. They did send me the t&Cs as I mention before - hope that the judge doesn't think that's ok. My agreement also makes ref to a condition not contained within the 4 corners.

 

I think I read somewhere that the letter of assignment should be sent by recorded delivery - don't know whether it not being would count for anything. If it should contain a date of assignor (think that's the date egg assigned to cq, but not sure of the terminology) then it doesn't. Curiously, when I started asking for LOA, one came supposedly from egg themselves some years after CQs claim to have had one.

 

Should I have had a default notice from CQ over this? They say they are waiting for egg to supply one to them, but in this case surely CQ should have sent one out as they are the ones now defaulted on not egg? Anyway, I have never seen one from either.

 

Wish I had you to come speak for me!! Lucky daughter.

Edited September 3, 2011 by Bobity
spelling

[Bobity]

Just reading something from nicklee on the property act. CQ have said that a notice of assignment has been sent but that 'he has no entitlement to a copy of the document effecting the assignment or to be told of the consideration for the assignment' this seems to be at odd with nicklees article.

 

originally posted my miss m

 

one of the statements made was that by the time the SD was served the full amount of the debt would have become due by virtue of the obligation to pay the monthly repayments and the creditor does not have to rely on a default notice having been served which under section 87 of the CCA would allow the creditor to have demanded earlier repayment of the full outstanding balance.

 

It says this on my witness statement from CQ as well!

Edited September 3, 2011 by Bobity
add line

[miss muppet]

Hi miss muppet

have read your fab outcome - thanks for the link! It is very useful as your daughter's case does sound similar to mine. They did send me the t&Cs as I mention before - hope that the judge doesn't think that's ok. My agreement also makes ref to a condition not contained within the 4 corners.

 

I think I read somewhere that the letter of assignment should be sent by recorded delivery - don't know whether it not being would count for anything. If it should contain a date of assignor (think that's the date egg assigned to cq, but not sure of the terminology) then it doesn't. Curiously, when I started asking for LOA, one came supposedly from egg themselves some years after CQs claim to have had one.

 

Should I have had a default notice from CQ over this? They say they are waiting for egg to supply one to them, but in this case surely CQ should have sent one out as they are the ones now defaulted on not egg? Anyway, I have never seen one from either.

 

Wish I had you to come speak for me!! Lucky daughter.

 

Aw bless! Don't think you would have liked being seated next to a bright red tomato face!

 

Now then to business:-

 

Yes, I believe you should have a date on the letter of assignment and the default notice should have the address and title

of the original creditor - Egg? Didn't have time to post more before as away for a couple of days but going to look around to find all the info on assignments for you - funny that they say more or less the same as they said about the default notice in daughter's case, trouble is bringing the Judge's attention to it, anyways back later with info I hope.

[ohitsonlyme]

Exactly the same tack that they took with me I had the SD setaside and got £300 costs for the effort and have heard nothing since other than a nice cheque in the post from them

 

They didnt turn up in court presumably to save costs on their part unfortunately my judge wasnt too bothered about giving them a flea in the ear But was very simple to proceed with copies of my defence and costs are available if you need them

onlyme

[Bobity]

Hi thanks for your responses missm and onlyme.

 

It would be great to see your defence and costs onlyme. No sure of what costs can be claimed.

 

I wondered about notifying the other side of my claim for costs if successful - might make them withdraw the case, perhaps this would be determined by how much the alleged debt is? They must have spent far more on chasing this with all the copies of documents they have sent out etc than anything near like they would have paid although I realise they hope to get the full amount from me.

 

Also on the witness statement they say that I have

'neither admitted nor denied the account'

'not admitted entering into an agreement'

'stated whether any repayments have been made'

 

Does anyone know what that's about? There obviously is an account, obviously an agreement was entered into (without prior knowledge of faults) and payments were being made 'til they falsley accused me of not paying.

[miss muppet]

Edited September 5, 2011 by miss muppet

[Bobity]

Hi

I tried to go to your link but photobucket asks for a password. do I need to sign up first?

[miss muppet]

Sorry Bobity, will try and get the stuff on assignments to you another way. BTW they did exactly the same to daughter, think your answer is a good one.

[miss muppet]

Ok, had to retype coz I'm a technological dunce:-

 

I put the respondent to strict proof that the requirements for service of notices of assignment were complied with. These are specified in the Law of Property Act 1925 as requiring the use of registered mail for service by post. If the respondent cannot prove that the notice of assignement was properly served, I respectfully submit it has no standing before the court.

 

The sections referenced below were obtained from the statute law online database:

 

136. Legal assignements of things in action

-(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by the 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 have priority ovwer the right of the assignee) to pass and transfer from the date of such notice -

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same;

© the power to give a good discharge for the same without the concurrence of the assignor

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him;or

(b) of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt of other thing in action into court under the provisions of the M1 Trustee Act 1925.

(2) This section does not affect the provisions of the M2 Policies of Assurance Act 1867.

 

10. The relevant provisions for services of notices under the act are set out below in s 196 of Law of Property Act 1925.

 

Regulations respecting notice-1 (1) Any notice required or authorised to be served or given by this Act shall be in writing.

[miss muppet]

Also Section 189 of the Consumer Credit Act 1974, have found its better to google this.

[Bobity]

Wow! Did you have to say all of that in court or did you submit it on paper?

 

I am expecting that I will turn up at court and go through my reasons for a set aside one by one, backing up with the various acts or rulings from other cases that support what I am saying. I am so hoping that the judge doesn't quiz me on the acts because quite frankly the legal jargon is very difficult for me. It's about time these things were written in the language that we speak. I am going to write down what I want to say and take with me all the correspondence that has passed between me and them in case the judge asks to see anything.

 

When onlyme posts me the costs stuff (I'm not sure what can be claimed for) etc I think I will write to CQ advising them that I will claim if successful.

 

Still waiting for the copy of the Default Notice from Egg. I also think that I should have had one from CQ as well.

[miss muppet]

Wow! Did you have to say all of that in court or did you submit it on paper?

 

I am expecting that I will turn up at court and go through my reasons for a set aside one by one, backing up with the various acts or rulings from other cases that support what I am saying. I am so hoping that the judge doesn't quiz me on the acts because quite frankly the legal jargon is very difficult for me. It's about time these things were written in the language that we speak. I am going to write down what I want to say and take with me all the correspondence that has passed between me and them in case the judge asks to see anything.

 

When onlyme posts me the costs stuff (I'm not sure what can be claimed for) etc I think I will write to CQ advising them that I will claim if successful.

 

Still waiting for the copy of the Default Notice from Egg. I also think that I should have had one from CQ as well.

 

Took it in as notes but TBH never used it. Make yourself notes on the CCA as below:-

 

Sec 78 (1) Duty to give information to debtor under running account credit agreement.

Sec 78(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.

Section 60 (1) Form and content of agreements

Section 61 (Signing of the Agreement) (1) A regulated agreement is not properly executed unless a,b and c

Section 127 Enforcement orders in case of infringement

(1) in the case of an application for an enforcement order under -

(a) Section 65(1) Improperly executed agreements

Section 127(3)

(vitally important, this section) (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.

Section 65(1)

Consumer Credit Agreements Regulations 1983 SI 1983/1553 Section 6 Column 2.

You cannot possibly learn all this but if you have it in front of you it gives you a bit of confidence.

 

If you had been supplied with a default notice by Capquest it should still be in Egg's name and there are very strict rules on how it is worded.

 

If onlyme doesen't get around to posting the costs just give me a bell and I can do this. You should really get this to our friends at least 24 hours before the hearing - I didn't do this because of their comments in the witness statement and daughter has not got her money yet - we have had to phone the court about this and they informed me that the order has been written up wrong and has to be done again so presumably will have to be put before a Judge for his approval - grrr- so get those costs in soonest!

 

Will come back with link, you may have seen already which has some interesting news on why they now produce a witness statement to back up the SD.

[miss muppet]

here you go:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?319215-Served-with-Statutory-Demand-by-CapQuest-would-appreciate-some-help.

[ohitsonlyme]

This was how I set out my costs scheduleI pretty much followed another one from this site

 

 

Costs of the applicant onlyme

 

For set-aside Application Case No.................

........................... County Court

 

 

 

Rate Claimed Litigant in Person rate of £15.00 / hour the rate at which I charge my time as a self employed builder £150 per day

Please see attached invoice as evidenceOr( Ithink it is £9.80 as a litigant in person)

 

 

Travelling Costs HMRC Approved Mileage Rate of 40p / mile

 

1) Time spent identifying and understanding relevant legislation.

Time spent identifying and understanding relevant case law.

Time spent preparing affidavit and witness statement

 

18 hours @£15.00= £240.00 (allowed by judge)

 

2) Time spent communicating with Respondent and swearing affidavit

 

3 hours @£15.00 =£45.00 (allowed by judge)

 

3) Loss of day’s wages for attending court £150.00 (Not allowed)but put in any way you never nknow

 

4) Travelling costs for return journey to court 2 x 20 miles £ 16.00 (allowed by Judge)

5/ Disbursments, postage typing etc. £10.00 (not allowed

 

Total £461.00

 

Notes

 

Before undertaking this myself I approached a solicitor to handle this. I was given an estimate of 3 to 6 hours at £150/hour to prepare the Application (£450-£900) plus extra for attending the court.

 

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

 

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

 

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

 

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 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

Costs awarded to me of £300!!!

 

 

I suggest you jiggle things around a bit so that they cant just say you copied it of the internet I did ask a solcitor and it is worth you doing the same some will give you a rough cost over the phone

[Bobity]

Thanks for both those posts miss m. I hadn't seen the other thread, don't know how I missed it, it is really useful and makes sense of the witness statement.

 

I've asked on the other thread but will ask here as well, can you submit the CPR 31.14 Request after the court hearing date has been set? It's the bit about extending the time to submit a defence that's making me unsure, isn't the time set by the date of the hearing?

[miss muppet]

Excellent stuff onlyme - almost right about the rate its 9.25 per hour. Think the judge was a bit stingy in daughter's case but she got the money yesterday - good more money out of Capquest's coffers!

 

Glad you found your way over to northernquarter's thread Bobity, some brill stuff on there, almost certain you can send the CPR request now and have attached another link which may help:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

[miss muppet]

and post 47 of Dizzie's thread:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?259523-MBNA-county-court-Summons-quot-Help-Please/page3

 

with any luck you'll get the same response as daughter did for a CPR 18 request, i.e. demand for £10 (Subject Access Request) which was the kiss of death for them in our case!!

[Bobity]

Hi

 

Thanks onlyme and miss muppet yet again coming to the rescue. Great stuff from both of you and it is hugely helping me with this loads and giving me the confidence to follow it through.

 

Not got back before this as I sometimes have problems accessing the site - can get on for days and then suddenly won't log me on although the welcome message recognizes me - something to do with cookies I think - anyway back on again now.

 

Thanks both again.

[Bobity]

Hi

 

When sending out the schedule of costs claim, do both the court and CQ get a copy of this or just the court? How far in advance should i send this out? It's getting close to 'the date' now and I'm feeling a bit nervy to say the least.

 

Thanks

Bob

[ohitsonlyme]

Hi

 

When sending out the schedule of costs claim, do both the court and CQ get a copy of this or just the court? How far in advance should i send this out? It's getting close to 'the date' now and I'm feeling a bit nervy to say the least.

 

Thanks

Bob

 

Send it to the court a couple of days before the hearing and to CQ to arrive the day before the hearing this wont give them any time to react to it.

 

Take a couple of copies to the hearing and make sure that you ask the judge for costs once he has dismissed the stat demand, my judge hadnt seen the copy of the costs statement until I gave him my spare copy.

Often the admin side of the courts is a week or so behind paperwork

onlyme