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Daughter's Capquest Statutory Demand - ** WON ** with costs


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Ok Guys and Girls,

 

As I promised Silverfox yesterday I am now going to tell you about my daughter's long battle with Capital One/Capquest. She and I have been fighting this battle since May 2007 against a dodgy Capital One Application form from 2005.

 

Capquest then took over doing their usual stuff of harassment, copious letters, many sendings of the application form and then bam, along came the Statutory Demand.

 

Defended this in her affadavit/witness statement by using the contravention of Rule 6.2. of the Insolvency Service as she received the SD by post and she duly tried to contact the ghostly Barry Davies with no success. Also used in the affadavit/witness statement s.127(3) missing prescribed terms, pointed out that the 2006 CCA Act does not change the legislation for pre-2006 agreements, used Case law Wilson v First County Trust , Dimond v Lovell and Lord Nicholls of Birkenhead. Pointed out the dodgy default notice i.e. usual Capital One, no date to be remedied etc. and Judge Boggis re bankrupty being one of the most serious forms of execution that can be brought plus Mr.Justice Warren in Hammonds v Pro-Fit USA about insolvency being used as a form of debt collection.

 

Capquest produced IMHO a scurrilous witness statement (I notice that Rob Cag had one of these too)in which they denied that she had tried to contact Barry and that he cannot be available all day every day to take calls. Without ranting on too much, 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.

 

They then went on to say that in their opinion my daughter's reason for pursing her application for set aside was the issue of costs and if the court agreed with the submissions the applicant's application would be dismissed and an order for costs not applicable as she had obviously downloaded the affadavit contents from the internet which had little if any bearing to the case.

 

Well, with all the troubles, we wondered whether the court would be open but we arrived early and they allowed me to go in with daughter. Needless to say no Capquest but even so Judge started off by saying that he could see little wrong with "the agreement", asked daughter if she denied she had an account with them, "No" she said, "Did she deny she had entered into an agreement with them" arghh, at first she said "No" and then she said it wasen't properly executed, Judge said she had been paying reduced monthly payments, she said "yes, but she was struggling andshe wanted to know what her rights were", he then said that she had raised several technical points in her affadavit and wanted to know what she meant, I asked him then if I could speak and to his credit he agreed as I said that she had found all this very difficult to understand and that I had helped her with most of the paperwork.

 

He asked me what was wrong with "the agreement" as she had signed it. I said that the prescribed terms were missing and that under section 127(3) it was not enforceable. He then asked me what the prescribed terms were and I told him and then pointed out to him that on Cap One's "alleged agreement" they have alongside APR 14.9% variable see section 11 and that there is no section 11 on either side of page. I continued to point out various missing sections and also pointed out the very short bit on right to cancel - he ignored the last bit and said "why was this information not in the affadavit?" - a fair enough point and one to remember for fellow caggers but I said that all the terms and conditions should be within the four corners of the agreement and that there is no evidence to show that these terms and conditions were attached to "the agreement" . I didn't say this but should have that this again refers to Section 127(3) that all the terms should be in a single document - these terms cannot be orally agreed , they cannot be found in another document (Tuckey LJ Wilson & Another v Herstanger Ltd. para 33).

 

He then asked me if we had a copy of the T & C's as he had one attached to their witness statement, I then showed him the knockout blow for Capquest i.e. that I had requested under CPR Rules a true copy and any T & C's when threatened by legal action by HL Legal and Capquest had responded by saying that as this was an SAR request they wanted £10 etc! I could tell he was really cross when he read that and shortly after he agreed to set aside.

 

My daughter said she was really worried about me as I went bright red, well it was hot in there but also I was really cross as he said he had been minded to adjourn to allow them to come up with the T & C's, I cannot believe he didn't pick up on their statement about not needing a default notice and their abuse of the court processes. Oh well, it was a result and I hope the experiences written about here will help other caggers. Allowed ourselves a large shandy in the pub next door once we escaped! We only got £80 costs despite having asked for over £300, partly my fault as I hadn't sent to the other side beforehand being concerned about their comments about the costs in their witness statement.

 

Sorry if this in the wrong place but hope someone will put it in the legal successes forum!

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Well done. Title amended as requested :)

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Have you reported this to the OFT ? If CQ were so convinced of their being in the right.. they should at least have the decency to turn up at court. I am surprised a Judge hasnt hauled CQ over the coals before on this..

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Uploading documents to CAG ** Instructions **

 

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Thanks CB, totally agree and yes, we have complained to OFT and they asked for daughter's permission to investigate. I will probably write to them to let them know the outcome.

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well done, I am so proud of you and I don't even know you! You were strong and it was a shame you had an unsympathetic judge. However, you knew your rights and you prevailed which is the main thing. Some really useful stuff in here too exp re the affidavid. Thank you for reporting back every experience is a learning one for lots of us here!

:lol:

Successfully claimed back mis-sold PPI (Barclays Bank) 2009-10 (£8500)

Ran a paid-for DMP. Deeply respect those who self-manage a DMP; it is possible to do with the help of fellow CAGGERS

Offered F&F to all my creditors. All closed out including a particularly intransigent and stubborn one - who eventually saw sense after 10 months of nonsense!

Does not condone debt avoidance but violently disagrees with the antics of debt collectors and their behavior towards the ones trying to pay. I am a great believer in what goes around, comes around. Keep up the good fight!

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Have you reported this to the OFT ? If CQ were so convinced of their being in the right.. they should at least have the decency to turn up at court. I am surprised a Judge hasnt hauled CQ over the coals before on this..

 

They prbably would if you paid a fee for comment?

:mad2::-x:jaw::sad:
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Well done....very interesting to see the judge getting narked about non compliance with the CPR's......

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