Served with Statutory Demand by CapQuest, would appreciate some help.

[miss muppet]

Sounds perfect! Don't forget to have a look at Silverfox's thread too and get your complaint into the OFT, they pulled up 1st Credit on this sending out of Statutory Demands, of course they love doing it because it costs them nothing and often they don't even turn up in court!

Click on 42 Man's user name, there's bound to be other threads which are relevant to you as well.

 

Another thing to do is if Barry Davies is the person named on the SD, telephone Capquest every day for three days and without giving your name to the telephone monkeys ask to speak to the ghostly Barry, don't give them any details other than to say you wish to speak to him about a Statutory Demand which you will be seeking to set aside, get their name but don't be fooled into giving them your number so he can ring back, this as you will see from the other threads is another reason for set aside.

 

Then when you hear from the court about a hearing date, you need to start swotting up on the relevant sections of CCA (you cannot possibly learn it all but can make notes to take in to the hearing with you) and relevant case law.

 

Read as many threads as you can but there will always be someone around to help - keep smiling.

[NorthernQuarter]

Thank you so much for your kind help miss muppet I really do appreciate it. Just one further question, I'll follow your advice and call CapQuest and ask to speak to Barry, but what's to stop them simply saying I never did if I don't give them any details (which I certainly won't). Is phone record sufficient evidence for instance?

 

Kind Regards

 

NQ

[42man]

Excellent so it seems it has been in dispute since 2009, and yet they are still issuing these stat demands - have a look at this - http://www.consumeractiongroup.co.uk/forum/showthread.php?309388-capquest-statutory-demand

[42man]

I suggest that you also send out the CPR31.14 to Capquest....SAR to the original creditor too. You have to be seen to be doing as much as you can to get information.

[42man]

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.

 

(If you use the CPR31.14 letter then you can also state)

 

The claimant has not provided any assignment, agreement, termination notice, default notice despite a request made under the Civil Procedure Rules

 

The claimant has failed to provide a copy of the agreement which contains the prescribed terms 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 collectionwhere 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]

And you might add that the alleged creditor has NOT made any kind of attempt at personal service

 

I refer to

 

Judge Boggis QC - RE AWAN - [2000] BPIR 241

 

'In my judgment, bankruptcy is one of the most serious forms of execution that can be brought against a debtor. In any bankruptcy proceedings it is, in my view, absolutely clear that the provisions as to service must be followed exactly.

[42man]

CPR31.14 letter is here and it MUST be in line with the particulars of the debt/claim on the statutory demand - You will need to EDIT this

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) CPR 31.14 Request

 

On (date) I received a statutory demand

 

I confirm it is my intention to contest all of your claim.

 

[i have delivered a request for the production of the agreement mentioned in the particulars of the claim/debt which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement/contract. where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the deed of assignment*

 

3 the notice of assignment*

 

4 statements for the duration of the agreement*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out for non-compliance and a summary costs order. in my favour

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[42man]

Make sure you send it recorded delivery too...you have to get the 6.4 and 6.5 in at the court within 18 days of when you received it...and check to see if your local county court DO handle bankruptcies as not all of them do.

[NorthernQuarter]

Make sure you send it recorded delivery too...you have to get the 6.4 and 6.5 in at the court within 18 days of when you received it...and check to see if your local county court DO handle bankruptcies as not all of them do.

 

Hi 42man,

 

I seriously can't thank you enough for all the help and information you've kindly given me, I don't know what I'd have done were it not for this site!

 

Kind Regards

 

NQ

[Bobity]

Hi

 

Can a CPR 31.14 Request be sent out after the court hearing date has been set? Just wondering because of the bit about requesting extension time to submit a defence.

[NorthernQuarter]

Hi 42man,

 

Just a quick question, CapQuest did actually provide me with a CCA (well it actually was a application form with no pre-described terms) and a letter stating they had bought the debt. I am still put all the information you gave me into form 6.5 or should I edit out the bit about not providing a CCA or notice of assignment?

 

Thanks in advance for all your help

 

NQ

[42man]

Well if that is the case then you write that they have not provided a compliant agreement that contains the prescribed terms and are in default of a request for a copy of your agreement. If the particulars mention an 'assignment' then you need to make sure the assignment is compliant under UK law, not just a lteer from them saying we have bought it...

[bluenose74]

i went through the same problem with this gang of ****** DO NOT WORRIE 42man is the guy, my debt which has been set aside has been sold again to 1st credit who are now trying it on, just go through the process of getting a copy of your credit file if the debt dont show on that then its statue barred from 6yrs of not recoinsing it no corrispondence to any of the chancers trying to cash in on people situations ,ask if cap quest has proof of payments made,they will send a blag copy of payments that looks like some kids have done at school with a fictional payment on that is bull,then about a week b4 your court date they will send a letter saying that they are willing to set asdie the statuary demand"WHICH THEY CAN NOT DO" go to court and let the person know the facts and what they havew done previously as abusing the statuary demand process and wasting tax payers money and court time CAP QUEST WONT TURN UP

Edited September 12, 2011 by 42man

[BRIGADIER2JCS]

blunose, be carefull about sweeping statements,

just because a debt does not appear on CRA files

it is not a definite indication that a debt is statute barred

there are factors that can mean this is not the case, eg.,

payments via debt management even one will have resatrted

the clock.

And don't be too sure that every thing a DCA may produce

is fiction or a ''blag'' from years of experience I have realised it

often is not.

[NorthernQuarter]

Does anyone know what I should be putting in for the 'Title' on the 6.4 and 6.5 forms?

 

Kind Regards

 

NQ

[42man]

6.5 title is WITNESS STATEMENT and here is a link to filling out the 6.4 - http://www.consumeractiongroup.co.uk/forum/showthread.php?162489#post1749288

[NorthernQuarter]

CPR31.14 letter is here and it MUST be in line with the particulars of the debt/claim on the statutory demand - You will need to EDIT this

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) CPR 31.14 Request

 

On (date) I received a statutory demand

 

I confirm it is my intention to contest all of your claim.

 

[i have delivered a request for the production of the agreement mentioned in the particulars of the claim/debt which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement/contract. where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the deed of assignment*

 

3 the notice of assignment*

 

4 statements for the duration of the agreement*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out for non-compliance and a summary costs order. in my favour

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

Hi,

 

I'm sending out this letter today and just want to ensure I've done everything correctly. When you say it MUST be inline with the particulars of claim, all that is written in this box on the SD is this...

 

The debt relates to unpaid ballance of sums due under Credit Agreement dated (There is no date printed!) made between (name) and (OC) in respect to (Credit Card Number). The agreement terminated upon failure of (name) to comly with terms of agreement and/or statutory notice of default served by (OC)

The rights and duties of (OC) passed to the Creditor pursuant to assignment dated (Date)

The totals amount due as at the date of this demand is (amount) which includes interest of £0.00, which has accrued since the assignment of the debt.

Is it odd they didn't put a date in reference to the Credit Agreement, so based on this I need the orginal CCA, the deed of assignment and the notice of assignment, is that right.

 

Thank You

 

NQ

[42man]

OK....excellent (for you).....

 

So from what you have menbtioned above, then you need to edit it to say this

 

1 the agreement/contract. where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the deed of assignment*

 

3 the notice of assignment*

 

4 statements for the duration of the agreement*

 

5 The termination notice*

6 the default notice

[42man]

That's pretty much a full house of documentation they should be providing to you........by doing this it shows that you are making every attempt to get the documentation......at your hearing you then need to show the judge the letter above to prove you have asked them to provide all the paperwork. Which by the time it comes to a court hearing they will struggle to do....

[NorthernQuarter]

Well that's the CPR 31.14 Request sent, had to send two by recorded mail, one to the main address and 1 to the addres Barry Davies put on the SD which is a PO Box, wasn't sure if you could send recorded to a PO Box so figured best be safe than sorry.

Thanks for all your help

NQ

[NorthernQuarter]

I've now completed the 6.4 and 6.5 forms, do I need to take these to my local court in person or do I need to send them recorded to the court as detailed on the SA?

 

Kind Regards

 

NQ

[42man]

You can send them recorded....make sure you keep several copies of all documentation too.

[NorthernQuarter]

Just a couple of further questions before I send these forms to the court. I assume I must sign these court documents, I've always been careful never to sign anything connected with CapQuest and is it wise to send these so soon as they don't need to be submitted for nearly a couple of weeks yet or does it make little difference? Also will it be the court detailed on the SA that I will be expected to attend as it's miles away? Sorry for so many questions, I really do appreciate the help as never had to do anything like this before so would have been lost without you.

 

Thank You

 

NQ

[42man]

You must sign the docs. Even if you sign slightly differently, then you will certainly tell if they intend to 'lift' your signature. The court will be the nearest court to you that handle bankruptices, check that the court named on the demand is indeed the closest to you and call them and ask if they DO handle bankruptcies/insolvencies.....if the court named is NOT the nearest to you OR they do not handle BR's / Insolvencies then it could possibly be an abuse of process.

[NorthernQuarter]

I've had a quick check and according to this handy site http://www.bankrupt.co.uk/Bankruptcy-Courts-England-Wales.htm so far as I can see my local court does handle BR's which doesn't surprise me as I live in a city with a much larger court than the one they have stated on the SA, what do I do about that? I was going to post the forms recorded back to the court they specified today; it's not as though they don't know where I live so I think it is a deliberate abuse of service as it would take hours of travel to get to the stated one on the SA.

 

Kind Regards

 

NQ