CAPQUEST Claimform AMEX debt

[Dot1]

Hullo there,

Please find below attached some documents in relation to the case.

Thanks Dot

[MARTIN3030]

Hello Dot just seen your report-am going out now but its flagged for team.

[Dot1]

Hello Dot just seen your report-am going out now but its flagged for team.

 

Hi Martin,

 

Many thanks for your rescue.

 

Thanks Dot.

[pt2537]

have you submitted your evidence?

 

for the charging order hearing i mean?

 

One thing people tend to miss, is that there is always the view from the creditors that they simply need to produce a document and claim its the agreement and thats that

 

This is wrong, yes there must be an agreement containing the prescribed terms, but they must also be 100% accurate with no room to get it wrong

 

so, check the agreement they say was the original against the statements, if the rate applied is not that on the agreement then its game over

 

There is case law albeit at County Court level on this subject and i happen to be fortunate to have been on the defendant legal team when the case was heard and won on exactly that point.

 

HTH

[Delfi101]

 

There is case law albeit at County Court level on this subject and i happen to be fortunate to have been on the defendant legal team when the case was heard and won on exactly that point.

 

And I was fortunate enough to be the defendant - as PT says it was truly game over within minutes rather than hours.

 

D

[pt2537]

And I was fortunate enough to be the defendant - as PT says it was truly game over within minutes rather than hours.

 

D

was quite amusing watching the otherside trying to wriggle and squirm their way out of the huge pile of mess

 

But it just goes to show that preparation and attention to detail is key to winning

[Dot1]

have you submitted your evidence?

 

for the charging order hearing i mean?

 

One thing people tend to miss, is that there is always the view from the creditors that they simply need to produce a document and claim its the agreement and thats that

 

This is wrong, yes there must be an agreement containing the prescribed terms, but they must also be 100% accurate with no room to get it wrong

 

so, check the agreement they say was the original against the statements, if the rate applied is not that on the agreement then its game over

 

There is case law albeit at County Court level on this subject and i happen to be fortunate to have been on the defendant legal team when the case was heard and won on exactly that point.

 

HTH

 

Hi pt2537,

 

Thanks for responding. Sorry had popped out briefly.

 

In fact, I have not submitted my evidence for the Charging Oder yet apart from the application form.

 

Looking at the first T&C provided, there is a received stamp on it dated 13. 08.2002.

 

The statement they provided started from 20.12.03 which would be about the right time for the alleged agreement.

 

There 2nd T&C has 9 pages printed from the internet on 15.03.10.

 

In my opinion they are already contradicting themselves.

Both of the CCA are uploaded for you to view and again your advice and suggestions are much appreciated.

 

Thanks for the link, I will visit is now.

 

Thanks Dot

[Dot1]

And I was fortunate enough to be the defendant - as PT says it was truly game over within minutes rather than hours.

 

D

 

Hi Delfi101,

 

Thanks for that. Is the thread on the links PT provided or somewhere else?

I need as much help as I can get. I need to protect my home from these monsters. I guess there is no 2nd chance, so I have to get it right.

I can only achieve that though help from you people.

 

Any advice and suggestion is welcome.

 

Thanks Dot

[pt2537]

Dot

 

When i say "evidence" i mean witness statement opposing the order and documents upon which you will rely,

 

It is a requirement that you serve your evidence opposing and i believe , although i havent done a charging order in a while, that you MUST serve 7 days before the hearing

 

So its vitally important you get this done,

 

It is a serious matter having a charge on the property, it is a vessel that can allow for an order for sale, so there is little room for error.

 

I have to say, that, while it is all very well posting the agreements, they dont tell the full story and if someone walked into my office and asked me to defend a charge based solely upon these docs without further information, i would decline to act.

 

I would need to ask the relevence of each document, i would need to check the statements for the corresponding periods of time for the agreements and i would need to carry out full compliance checks

 

as i said and as was the judgment in D's case, just because all the prescribed terms are there, doesnt mean that they are correct or that the agremeent is enforceable

[Dot1]

pt2537

 

The case was before the District Judge in Feb this year but the Claimant did not show up, but wrote and advised the court that they had not served all the parties. The case was then adjourned to this month and the Judge ordered that they provide me with the CCA. She ordered both hearing to take listed on the same day allocating 1 hour.

 

Though I have sent the CPR request and they came out with the internet print out, I am thinking of asking them for the inspection of the original docs as there seems to be discrepancies already from what I have.

 

Any suggestion?

[pt2537]

pt2537

 

The case was before the District Judge in Feb this year but the Claimant did not show up, but wrote and advised the court that they had not served all the parties. The case was then adjourned to this month and the Judge ordered that they provide me with the CCA. She ordered both hearing to take listed on the same day allocating 1 hour.

 

Though I have sent the CPR request and they came out with the internet print out, I am thinking of asking them for the inspection of the original docs as there seems to be discrepancies already from what I have.

 

Any suggestion?

 

Well, you must have a CCJ if they are applying for a Charge,

 

so you need to get the CCJ set aside, to do this you will need to show a properly pleaded defence to the court so that the court can see that you have a realistic prospect of success in defending the matter.

 

You will also ideally need to show a breach of s78(1) if you can, this then places the court in a difficult situation as it cannot make an enforcement order such a a charge if there is non compliance.

 

Its very difficult to advise further in all honesty as i havent had any involvement in the matter leading up to now so i can only go on what i have read on here

[Dot1]

Dot

 

When i say "evidence" i mean witness statement opposing the order and documents upon which you will rely,

 

It is a requirement that you serve your evidence opposing and i believe , although i havent done a charging order in a while, that you MUST serve 7 days before the hearing

 

So its vitally important you get this done,

 

It is a serious matter having a charge on the property, it is a vessel that can allow for an order for sale, so there is little room for error.

 

I have to say, that, while it is all very well posting the agreements, they dont tell the full story and if someone walked into my office and asked me to defend a charge based solely upon these docs without further information, i would decline to act.

 

I would need to ask the relevence of each document, i would need to check the statements for the corresponding periods of time for the agreements and i would need to carry out full compliance checks

 

as i said and as was the judgment in D's case, just because all the prescribed terms are there, doesnt mean that they are correct or that the agremeent is enforceable

 

 

Well, as I previously said, I have not submitted anything apart from the application form. Obviously that is a problem. Have done some research and I was hoping that I will send everything together. But the Claimant only provided me with the CCA on 26.03.10 but was not legible. Then when I send a CPR, I received what I posted yesterday.

 

I very much want to get it right as mistake will be very costly as you earlier on mentioned.

 

Thanks Dot.

[pt2537]

Well, as I previously said, I have not submitted anything apart from the application form. Obviously that is a problem. Have done some research and I was hoping that I will send everything together. But the Claimant only provided me with the CCA on 26.03.10 but was not legible. Then when I send a CPR, I received what I posted yesterday.

 

I very much want to get it right as mistake will be very costly as you earlier on mentioned.

 

Thanks Dot.

 

 

Then this is really problematic then,

 

Ok, Question time

 

1) have you ever made a formal request for a copy of your agreement under the Consumer Credit Act 1974 and if so was this request accompanied with the £1.00 fee?

 

2) if the answer to 1) is yes, then what did the Claimant provide? need to be specific here

 

3) you say in response to your CPR request? a request pursuant to 31.14 is applicible up to the point where judgment is entered, so when did you make the request? before or after judgment?

 

4) you must have a judgment ? yes? if so, please explain how you came to have the judgment against you? did you defend the claim? when was the judgment entered against you?

 

5) have you applied to set aside the judgment? if so, can you point me to your application, witness statement and draft order? is it on the forum at all?

 

 

These are basic questions which need answering to give me an idea of what were playing with

[Dot1]

Well, you must have a CCJ if they are applying for a Charge,

 

so you need to get the CCJ set aside, to do this you will need to show a properly pleaded defence to the court so that the court can see that you have a realistic prospect of success in defending the matter.

 

You will also ideally need to show a breach of s78(1) if you can, this then places the court in a difficult situation as it cannot make an enforcement order such a a charge if there is non compliance.

 

Its very difficult to advise further in all honesty as i havent had any involvement in the matter leading up to now so i can only go on what i have read on here

 

Yes, you are right. They obtained a CCJ in August 2009.

But when the Claim form arrived, I was away from home so I did not acknowledge. They then obtained a default Judgment.

I could not have made a set aside application because my wife was ill and admitted in the hospital but at the same time expecting a baby. Due to her illness, the baby was delivered prematurely and the baby remained in the Neonatal care there after.

For those reasons, I could not have acted earlier than now. I then informed the Claimant why I did not respond but they were not bothered.

I asked them for CCA in November but only received it now.

They they then went on the CO stage.

 

That is the brief background.

[pt2537]

very important,

 

Did you ask for the agreement using the Consumer Credit Act 1974 and providing the £1 fee?

[Dot1]

Then this is really problematic then,

 

Ok, Question time

 

1) have you ever made a formal request for a copy of your agreement under the Consumer Credit Act 1974 and if so was this request accompanied with the £1.00 fee?

Yes, I made it in November 2009 and enclosed the appropriate fee too.

 

2) if the answer to 1) is yes, then what did the Claimant provide? need to be specific here

The Claimant provided only Statements, then until on 26.11.10 they came up with the CCA.

 

3) you say in response to your CPR request? a request pursuant to 31.14 is applicible up to the point where judgment is entered, so when did you make the request? before or after judgment?

I made the request on 29.03.10 because the CCA and T&C provided was not legible.

 

 

4) you must have a judgment ? yes? if so, please explain how you came to have the judgment against you? did you defend the claim? when was the judgment entered against you?

Yes there is a judgment which I did not defend for the reasons I gave in my previous post.

The claimant acquired debt in Jan 2009 from Amex and sent a claim form in July which I did not acknowledge then obtained default judgment in August.

 

5) have you applied to set aside the judgment? if so, can you point me to your application, witness statement and draft order? is it on the forum at all?

Yes, I applied set aside the judgment.

No, the application is not on the Forum will post it shortly.

There is no witness statement submitted yet.

 

These are basic questions which need answering to give me an idea of what were playing with

 

I have posted some docs on the forum in the previous page but will be posting more shortly.

 

Thanks

[Dot1]

very important,

 

Did you ask for the agreement using the Consumer Credit Act 1974 and providing the £1 fee?

 

 

Yes I did request it the consumer Act and also enclosed the £1.00.

That was in November 2009.

[Dot1]

PT,

 

Here are the documents.

[Dot1]

I also noticed that the DN is not right.

 

Attached is the DN and CCA (13 Pages)

[pt2537]

super

 

Right, well, the one fly in the ointment may be their ability to argue on the basis of Rankine v Amex, the agreement was terminated therefore no obligation to provide the agreement

 

Obviously going against them, the fact they have produced it

 

so, where do we stand here,

 

Well, no witness statement with the application is not helpful, so that needs attention,

 

The agreement provided will need checking with the statements to check the rates of interest on the agreement vs actual rate charged.

 

Then if you find the rates are wrong this is strong grounds to challenge this agreement.

 

I think that it will be very difficult to deal with this in the open forum as HL and Capquest do monitor these forums and may well be able to identify who you are and preempt you

 

This case is very winnable thats for sure

 

I will have a think on the best way forward from here

[Dot1]

PT,

 

Here are more docs.

 

Thanks

[Dot1]

Thank you PT.

 

I am stepping for 20 mins.

 

Will be back soon.

[Dot1]

Hi PT,

 

Sorry I had to pick something before the closing the shop. I am back now.

Thanks

Edited April 2, 2010 by Dot1

[Dot1]

super

 

Right, well, the one fly in the ointment may be their ability to argue on the basis of Rankine v Amex, the agreement was terminated therefore no obligation to provide the agreement

 

Obviously going against them, the fact they have produced it

 

so, where do we stand here,

 

Well, no witness statement with the application is not helpful, so that needs attention,

 

The agreement provided will need checking with the statements to check the rates of interest on the agreement vs actual rate charged.

 

Then if you find the rates are wrong this is strong grounds to challenge this agreement.

 

I think that it will be very difficult to deal with this in the open forum as HL and Capquest do monitor these forums and may well be able to identify who you are and preempt you

 

This case is very winnable thats for sure

 

I will have a think on the best way forward from here

 

Pt,

 

I was going through the Statements, the first one being Dec 2003.

Issued identified:

Dec 03 - Sept 04 Applied

Monthly Rate Goods & Services 1.45%

Monthly Rate Cash Advance 1.45%

Monthly Rate Balance Transfer 0.79%

Late payment fee £20.00

These were applied Oct 04 - May 06

Monthly Rate Goods & Services 1.45%

Monthly Rate Cash Advance 1.50%

Monthly Rate Balance Transfer 1.02%

Late payment fee £20.00

Over the Limit fee £25.00

Issues identified in T&C:

Monthly Rate Goods & Services 1.45%

Monthly Rate Cash Advance 1.50%

Monthly Rate Balance Transfer 1.02%

Late payment fee £25.00

Over the Limit fee £25.00

No sign of rebate in the statements yet mentioned in the T&C

I do not know if something to do with default notice too should have been mentioned. It is not mentioned at all in the T&C.

Edited April 2, 2010 by Dot1

[Delfi101]

So, are you saying that the T&C's (allegedly associated with the supplied 'agreement' under the CCA) have different rates from the first statement(s) that you received?

 

D