capquest sd re littlewoods CAT DEBT - ***WON***

[42man]

What I have written goes on 6.5 (affadavit).....if you can get that printer that would be a real help....

[42man]

Leeds might be alright for me...but lets wait and see what happens first with the demand....

[42man]

If you aren't sure of anything please ask.....

[chezza2409]

can i add other sheets of paper, cos the form i got had only got bout half page of space.

 

I dont mind the writing , would rather get it right from the get go.

[42man]

Yes you can add continuation sheets.....

[chezza2409]

thanks well , i suppose i will get set to with the cca and the statute barred letters so i can get them in the post in the morning. If i have any problems with the affadavit over the weekend i will leave you a message for monday.

 

Once again thanks, it will make my weekend more enjoyable now i know i can hopefully beat these bullies

[42man]

We can work out a costs sheet too....but this we can do at a later stage, please spend as much time as you can having a good read !!! and if you can get that printer then it really will help !!!

[chezza2409]

hi 43man, i have sent of cca and statute barred letters to capquest. I have received forms from court, so if you got chance later could you give me a hand filling out 6.4 and 6.5 over the next day or so then i can get it to court for friday please.

[42man]

No problem Chezza....i'll be able to do it before the end of Thursday, If I haven't by Thursday a.m. give me a nudge....

[42man]

Any news on the printer ?

[42man]

Read this VERY carefully, EDIT it as required and use this as your affadavit...

 

The defendant totally disputes the debt.

 

The alleged creditor has provided no proof that the debt is barred by the Statute Of Limitations Act 1980

 

The alleged creditor has provided no consumer credit agreement with the prescribed terms.

 

The alleged creditor has not provided any default notices in the prescribed form.

 

The alleged creditor has provided no statements for the duration of the account.

 

The alleged creditor has not provided any notices of assignment.

 

The alleged creditor has not sent me a letter before action.

 

Under section 78 (1) of the Consumer Credit Act a formal written request for any true copies of signed consumer credit agreements was sent to Capquest. via guaranteed/recorded delivery on the (insert the date on the recorded delivery slip here) (see attached document 1 – you need to copy the letter and the recorded delivery slip (take 2 copies) – to date they have not sent any copies of any Consumer Credit Agreements and they are in default of that request under section 78 (1) of the Consumer Credit Act

 

I believe there are no properly executed signed Consumer Credit Agreements (as the account does not exist),

 

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;

 

It must also be noted that the agreement must contain the prescribed terms.

 

Consumer Credit Act

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

(N.B - 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. (cont)

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

 

• 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

 

The law states that without a prescribed agreement the courts may not enforce under 127(3) and

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

 

If the agreements are, as I expect, unenforceable by law or if no written agreement exists, then the respondent was in error when it stated that a liquidated and legally enforceable sum was due to the respondent at the time the bankruptcy petition was issued.

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 attached to the petition.
  

• 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

 

The alleged creditor has not 'served' anything on me, but simply posted a demand by first class - I believe that this is a frivolous attempt at scaring me into paying and therefore an abuse of the process.

 

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. - JUDGE BOGGIS QC - SITTING AS A JUDGE OF THE HIGH COURT

 

On the above information I request that the demand is set aside and I kindly ask the the judge award my costs in this matter as a LITIGANT IN PERSON.

 

As a lone parent/low income earner/low income family (Chezza - EDIT these as required) with limited finances I approached a solicitor by phone and asked for an estimate on how much it would cost. I was given an estimate of 3 to 6 hours at £170 per hour to prepare the Application (£510-£1020) 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).

 

Please, please, please read and try and understand what is being said here.....

 

Take the forms in yourself to the court (ring them first to make sure they handle bankruptcies) ask the court staff to swear in the affadavit !!!

 

RING the court on a weekly basis to find out IF a hearing has been set (the reason I say ring rather than watch the post is because items from court can and DO go missing)....I don't want you to miss a court hearing date for the Stat demand....

 

Any questions please ask....

 

If it gets to a hearing, I will help you with your costs sheet too.....

 

Please try and read as much as you can also on these forums...

[chezza2409]

hi 42man, Sorry i did not get back sooner but internet been down for a few days. I have managed to edit the above ready for affadavit. On 6.5do i just put that I do not admit the debt because and say see attached, would that be ok? Also on 6.4 I dont understand whos names go in where, (sorry for being so thick) but it asks for name and address of person to attend hearing then name of debtor then name and address of persons to be served is this all me.

 

I am really sorry to keep asking, but due to my medication it makes my head a little cloudy and it takes me a while to get my head aroundthings. thanks again for your brilliant help it is much appreciated.

 

p.s i have managed to get my hands on a printer so makes it all much easier.

[42man]

You totally dispute the debt !!! Write what I have written for the affadavit, and please have a really, really good read at what is being said....

 

Help here with 6.4 - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

[chezza2409]

hi again 42man, i get all that you said before but its the 6.4 i am having problems with,

 

name and address of person to attend hearing

 

name of debtor

 

name and address of persons to be served

 

applicants address for service

 

surely i cant be all of these, or am i missing something?

 

thanks

[42man]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/163766-statutory-demand-1st-credit.html?highlight=registrar

 

For (a) fill in your name and address

 

The section that states attend before the Registrar leave blank. This will get filled in by the court.

 

For (b)

on the hearing of an application by (b) (insert your name)

 

An application for an order that the statutory demand dated (insert date on the SD that you received from Connaught) be set aside

 

For ©

The grounds on which the applicant claims to be entitled to the order are set out in the affidavit of the applicant sworn on (insert the date that you hand the forms into the court).

 

For (d)

The names and addresses of the persons upon whom this application should be served are:

(d) (insert name and address of Connaught)

 

For (e)

The applicant’s address for service is: (e) (insert your name and address)

Cross out where it states (Solicitor for the) and just leave the word Applicant and sign and date the form.

[chezza2409]

thanks for that 42man. will do that now, and hopefully will get down to the court on monday or tuesday, depending on my carer, when she can take me.

[chezza2409]

i need some more help please!! I have been looking through the few letters that I have received from Capquest and i notice a letter from littlewoods finance that states that they give notice of assignment to Capquest. Now! the strange thing is that the signature on this said letter is the exact same as the signature on the SD from capquest. Should this be mentioned in the affadavit too?????

[chezza2409]

Called capquest today to see if I could speak with the person who signed the SD, (guess what? she was not avaiable) was told by the numpty that he has the authorisation to deal with me and the person whom i was trying to contact only signs off all the letters. Surely if they put their nameto the SD then that is the person whom you must contact. This whole charade just gets worse and worse. Ive taken names and times of my call to these cowboys.

[42man]

You must also mention this Chezza in the affadavit....that you have attempted to contact the person named in the SD....but they are always 'unavailable'.....the person named in the SD, should be contactable....

 

A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

This means that if the statutory demand doesn't give the name of a person you can speak to then it is not valid. If you try to contact the named person and they won’t put you through then it is also invalid.

 

 

 

don't worrry about the assignment....you can follow this up with trading standards and the OFT after you win your SD set aside....

[nevos]

I bet capquest will drop this like a hot potato....

[chezza2409]

thanks forthat 42man, i thought that was the case. Ive just updated the affadavit and will be going to court tomorrow to swear it in. thanks again for your help, its been very informative. Will keep you updated on what is happening

[42man]

So far out of all the CQ cases on here, they have never turned up at court....Chezza, should get this set aside and claim COSTS !!!

[42man]

Let us know if you get a court hearing Chezza.....

[chezza2409]

just an update.... Received a letter from CQ this morning. It says " thank you for your recent communication requesting copy documentation on your account. We have requested the documents from littlewoods finance and we expect to receive them shortly. " This is the reply i was expecting but its the next part that has got me puzzled

 

"Whilst we wait on littlewoods response, we have selected your account for a pilot scheme to save you time and money. This scheme consists of offering you a one of settlement amount to clear this account by xx nov. We are offering you a saving of 75% and your liability will be cleared.

 

IF you do not wish to take up this offer your account will be fast tracked into litigation (I though it already was)

 

Should I also include this STUPID letter in my affadavit?????

[MONX]

In my humble opinion its a last ditch attempt at getting you to pay out on a (possibly statute barred) disputed debt. Unless of course you wish to take them up on their offer, I would decline it by not entering into any other correspondence until they provide the CCA request.