Capquest/DrydenFairfax SD for old LLoyds Overdraft 'debt'***Set a Side***

[kman449]

Hey guys

 

Three days ago a bloke turned up at the door

and handed me an SD issued by DrydenFairfax on behalf of Capquest for an Lloyds current account overdraft for an amount of about £1k.

 

 

In the POC they suggest a default notice was issued in July 2009 by the OC.

 

 

I don't recall any default notice or notice of assignment to Capquest.

 

 

I did have this account in dispute years ago and SAR'd them.

I've had a look through the stuff they sent me and cannot find any default notices etc.

 

I've read quite a bit about getting the SD set aside and reasons for do so,

but I'm a bit confused as to the difference between overdrafts on current accounts and credit cards.

 

 

Most SD threads relate to credit cards and the suggestions about sending the £1.00 CCA request don't relate to current accounts/overdrafts.

 

With regard to setting the SD aside, bearing in mind this is an overdraft I am of the opinion not to send the CCA request. Is that correct?

 

Is there anything I should be aware of when replying back to these clowns

with regard to it being an overdraft and not a credit card,

or can I still use the usual defences that have been discussed many times?

 

 

There are defence elements that I've read that refer to the Consumer Credit Act 1974

(eg On the alternative, if the Claimant is an assignee of a debt,

it is denied that the Claimant has the right to lay a claim due to contraventions of Section136

of the Law of Property Act and Section 82A of the ConsumerCredit Act 1974.)

...I didn't want to include anything in my defence/reply to them that is not relevant with this being an overdraft.

Please can someone clarify?

Many thanks

KMAN

[citizenB]

You have 18 days from the date the Stat Demand came into your possession to make your application - so don't hang around.

 

There will be no CCA as such but you should have received a Facility letter. They do not need to send a Default Notice, but you should have received a formal demand (almost the same thing).

 

You should have received a Notice of Assignment.

 

Was there any other communication from CapQuest during the time they say they became the new owner of the debt ?

 

If the account was in dispute then that could be a reason to have the demand set aside.

 

 

 

I will try and find someone to help

[kman449]

Hi citizen - many thanks for your quick reply.

 

 

I can only lay my hands on one Capquest letter dated May 14 that says despite several attempts to contact me the amount still is unpaid and they threaten to pass to Dryden. I've moved house a few times over the last few years so it could be that they've written to the wrong address.

 

 

Am I right in thinking then that as this is an overdraft, not a credit card, my defence options are much more limited?

 

 

The Particulars of Debt section on the SD has four paragraphs as below:

 

 

The creditors claim is for the sum of XXXXXXX being monies owed by the debtor to the creditor under credit agreement (the "agreement") which was numbered xxxxxxxxx and was regulated by the consumer credit act 1974

 

In default of the terms of the agreement, the debtor has failed to make the required contractual payments. Accordingly the creditor has issued a default notice to the debtor on xx/xx/2009 which the debtor has failed to comply with and the agreement was terminated.

 

Full particulars of the outstanding balance have been provided to the debtor and the debt remains due and owing at the time of this demand.

 

The debtor appears to be insolvent and unable to pay their debts as and when they fall due

 

The particulars refer to a default notice and regulated by the consumer credit act which is a cause for confusion.

 

 

Is this any cause for a defence?

 

 

Once again, a great many thanks for your help.

KMAN

[AndyOrch]

Hi kman

 

If you could have a read of the following stickys.....this will give you an insight to how these beasts work...and I will post tomorrow to advise further.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?162131-Statutory-Demands-and-Service-By-Post

 

&

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?407519-Statutory-Demands-and-Lowells.

 

Regards

 

Andy

[kman449]

Hi Andy

 

 

Thanks very much for the links, I've had a look through them - why does everything legal always have to be so complicated?

 

So in trying to formulate a defence I am still rather confused between this being an overdraft rather than a credit card and whether I can use the arguments that many are using such as in the below 'typical defence' post I found:

 

Any defence suggestions for this situation would be awesome; many thanks.

 

__________________________________________

The Defendant contends that the particulars of claim are vague and generic innature. The Defendant accordingly sets out its case below and relies on CPR r16.5 (3) in relation to any particular allegation to which a specific responsehas not been made.

1. Paragraph 1 is not admitted with regards to the Defendant entering in to anAgreement referred to in the Particulars of Claim ('the Agreement') with theClaimant as the Defendant did not enter into any Agreement with the Claimant.

2. Paragraph 2 is not admitted with regards to the Claimant serving a defaultnotice in connection with the alleged contractual Agreement as the Defendantdid not enter into any Agreement with the Claimant.

3. On receipt of this claim I requested information pertaining to this claimfrom Drydens Fairfax by way of a CPR 31.14 request. To date, a response hasbeen received on 25/07/14, (dated 17/07/2014) from Drydens Fairfax noting thecontents of the correspondence, suggesting the matter is on hold whilst theyclarify the current position and seek further instructions from their client.No further correspondence has been received since then, also a request undersection 78 was made at the same time, and again no reply has been forthcomingsince then, nor has the defendant ever been served with a Notice of Assignment.

Therefore with the court’s permission the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement; and

(b) show how the Claimant has reached the amount claimed for;

© show how the Claimant has the legal right, either under statute or equityto issue a claim;

(d) show how the agreement was legallyterminated to allow the claimant relief

4. As per Civil Procedure Rule 16.5, it is expected that the Claimant prove theallegation that the money is owed.

5. On the alternative, if the Claimant is an assignee of a debt, it is deniedthat the Claimant has the right to lay a claim due to contraventions of Section136 of the Law of Property Act and Section 82A of the ConsumerCredit Act 1974.

6. By reasons of the facts and matters setout above, it is denied that the Claimant is entitled to the relief claimed orany relief.

_______________________________________________

[AndyOrch]

Hi kman449

 

There appears to be some confusion...you dont submit a defence to a Statuary Demand...but a an Affidavit stating the reasons for dispute or none payment.

The most common being that the creditor is in default of a section 77/78 request...but yours relates to a current account which are exempt from this request and from the CCA1974 except for part v.so you wont be using that reason.Another could be PPI ...again not applicable to Overdrafts.

 

What are the genuine reasons for the breakdown of the account?

 

So as you state your options are limited.

 

Andy

[kman449]

Hi Andy

 

 

Thanks once again for your assistance with this, and apologies for using the wrong terminology.

 

 

This was all so long ago (2008/2009) that it is difficult to remember what happened. I have spent some time today looking through old paperwork and I have found an Enforcement Notice dated 3 July 2009 (in the Particulars of Debt section of the SD it states "the creditor issued a Default Notice to the debtor on 01/09/2009").

 

 

I have also found some correspondence between myself and Lloyds (the OC) in early 2009 about excessive charges being applied to the account and as a result I put the account balance in dispute. It was then passed to their solicitors SCM (i think).

 

 

The account was passed to a few DCAs and I have found one letter on my PC that I sent to IQOR (2011) stating that £4210 of this balance was excess charges that the account was in dispute.

 

 

I did SAR Lloyds (and a lot of other organisations) in early Jan 2009 but I can't find any bank statements relating to this account except for some very early ones (2000/2001) so I am unable to say when the last payment was made, but as I SAR'd them in Jan 2009, there's a possibility that my last payment to the account was in 2008 and so may be statute barred. The SD was handed to me on Sept 1.

 

 

Given the above information, what would the suggestion be for the best course of action?

 

 

Once again, big appreciation for the help guys.

[AndyOrch]

I would run with Statute Barred in that case plus the account consists predominantly of penalty and interest charges...have you viewed forms 6.4 &6.5 yet?

[kman449]

Hi Andy

 

 

Thanks for the advice. Yes I've had a look at the forms 6.4 and 6.5. Not exactly sure how to complete them, is there any decent guidance anywhere about completing the forms?

 

 

A few questions, if I may?

 

 

1) I'm not exactly sure when my last payment was made to this account so should I try and find out exactly? The only way I can think of to do this is to SAR the OC again, but obviously this would take time.

2) Would I write to the solicitors who issued the SD with an explanation of the situation from my point of view as well as fill out 6.4 and 6.5 and file with the court, or not contact the solicitors but file the forms with the court?

3) Is the fact that a large proportion of the balance is made up of charges a reason to have the SD set aside?

 

 

Thanks again for your help.

KMAN

[AndyOrch]

The forms are really quite easy to complete and self explanatory...with regards to your salient points....

 

1.Ring them(LLoyds) and ask.

 

2. No need to contact the the Sol just submit the forms.

 

3. If you can prove that there was an ongoing dispute with the account and the reasons that it broke down then it may be away forward.

 

If you could reduce the amount to below £750 then you do realise that they cant cant proceed with a petition to bankrupt you?

 

Andy

[kman449]

Thanks again for the reply, Andy.

 

 

I've spent all day today formulating an outline response to the SD and believe I have a way forward to get the SD set aside. Looking back at my previous correspondence, it looks like I did put the account in dispute in August 08, although I'm not 100% at the moment. Added to this, the account was placed in dispute as a large proportion of the balance comprised from excessive, unfair and punitive charges. Additionally I never received a notice of assignment so I have a number of valid reasons to have it set aside.

 

 

I have completed form 6.4 and with regard to 6.5 - can I type up my Affidavit on a separate document or does it have to appear on the form itself? Presumably I can just say on the form 6.5 to see the additional document (which is about 4 pages long)?

 

 

Also on the SD it states that if I dispute the claim then I should write to the person named in Part B (the solicitors). I've therefore drafted a rough copy of a letter I intend to send to the solicitor. I will sharpen it up over the next couple of days, as well as my Affidavit to submit to the court.

 

 

Is it always the case that one has to attend court for a Set Aside hearing?

 

 

Thanks again

KMAN

[AndyOrch]

" Is it always the case that one has to attend court for a Set Aside hearing?"

 

Imperative ......also I would still throw in Statute Barred...that is the most powerful reason.

[kman449]

Hi Andy

 

 

Thanks again. I wonder if you could answer a quick one? I have prepared all the documentation (6.4/6.5 etc) and took them in to the court specified on the SD. The lady in the court advised me that since my home address is based in a different city/town this court cannot accept the documentation. The lady advised me that I should highlight this fact on the witness statement (the wrong court had been specified on the SD) and take it in to the court in the same city as my address. She said there is a good chance that the judge will set it aside on the basis the incorrect court was entered on the SD.

 

 

Is there anything in addition I can include or any legal terminology I can include to persuade the judge to set it aside on this basis, notwithstanding all my other areas for defence? Lots of wasted time as well going to the court when they wouldn't accept it.

 

 

I need to get the papers in asap to the other court.

 

 

Many thanks

kman

[AndyOrch]

Technical or factual defects in a SD does necessarily mean the court will set a side for that reason but as advised you can make comment on your affidavit how this as added to your inconvenience.

[kman449]

Thanks Andy

 

 

I've submitted the documentation to the court and the lady said an appointment for a hearing will be made asap and I will be notified by post.

 

 

Does the judge read the witness statement before the hearing or will they just be looking at it for the first time then? I was wondering whether they may order it to be set aside before the hearing.

 

 

I'm also wondering what the likelihood is of the other side going through with the hearing or whether they will pull out before hand. We shall see......

 

 

Thanks again

kman

[AndyOrch]

Looks at it at the hearing...there will have to be a hearing...make sure you attend...they probably wont.

[kman449]

Hey guys

 

 

I thought I would just provide an update on this.

 

 

I went to court the other day for my SD hearing and arrived about 30 minutes before the court hearing time. I checked in with the clerk and by this time there was nobody from the claimant's side there.

 

 

About 10 minutes later someone turned up from the other side's solicitors and announced himself to me. He produced a form that he asked me to sign which agreed to set aside the SD along with no order of costs. I was happy to sign this and have put the costs down to a learning experience. We went in to see the judge for the order to be signed and she was reading my defence as we went in and she seemed very nice - she commented that this was a very interesting case and said it was like sitting an exam wading through all the stuff I'd put in my statement.

 

 

Whilst we were waiting to be seen by the judge, the guy from the solicitors said they were not aware of any dispute and would go back to the OC to obtain the information I required to prove a contract existed. He said they would try and obtain the documentation I asked for including the assignment notice etc. So it may not be the last I hear of this case. He also asked me if there was an amount of money I could offer which he could go back to his client with to see if they could accept it without having to go any further. I said I wasn't prepared to offer anything due to the circumstances surrounding the case.

 

 

He said that everything discussed outside the courtroom would be "without prejudice" but I kept him at arms length as much as possible.

 

 

He also made a note of the previous DCAs who had been attempting to recover money.

 

 

One of the elements of my defence was that I did not recognise this DCA and I had received no Notice of Assignment. The solicitor from the other side said they would argue that there had been an assignment in equity - and seemed confident that his argument would win. I didn't say too much to that as I didn't have a Scooby if that would be the case or not.

 

 

Anyway, at the end of the day I was happy to get it set aside and will wait to see if they produce what I'm after.

 

 

Thanks to everyone on here for the help and useful information.

[AndyOrch]

Well done kman

 

Delighted that this has been resolved...thread title amended to reflect the outcome.

 

Regards

 

Andy