Capquest and Stat Demand help

[surreytim42]

Hi

 

I am new here and hope some of you can help me out with this

 

I have received a Statutory Demand from CapQuest dated 27 April 2010 but delivered by hand to my landlord on 11th May 2010

 

This is for a debt with Goldfish back in 2002 but capquest took this over in 2005

 

Its signed by the famous Barry Davies

 

After reading various threads here, i have prepared the reply that is recommended here by requesting a copy of the consumer credit agreement pursuant to section 77 to section 79 of the consumer credit act 1974.

My question is do i need to wait the 18 days to see what comes back and what papers do i need to prepare for my local court to have this set aside?

Any help greatly appreciated

Tim

 

 

 

[surreytim42]

sorry the last bit of my question seems to of been corrupted

 

i was asking do i need to wait the 18 days before applying to my local court to have this set aside and also what forms do i need to fill in to do this

 

Thanks

 

Tim

[unclebulgaria67]

The following link from the Insolvencyhelpline should answer your questions.

Legal Issues Explained - Statutory Demand

 

They have a helpline, if you have any questions. You need to submit the set aside within 18 days of the statuatory demand being served. The demand was not properly served and Capquest will be in trouble giving it to your landlord. Put in front of a judge, you should be able to get some costs awarded to you.

 

There was another thread where Capquest had done exactly the same and did not turn up for the hearing. The judge was pretty pi**ed off and was very eager to award costs against them.

 

This debt could be statute barred if more than 6 years (5 in Scotland) have passed since the debt was defaulted on. This is provided no CCJ was applied and you did not acknowledge the debt.

[surreytim42]

Hi

 

Thanks for the info unclebulgaria67

 

the original debt was to goldfish credit card back in 2002, i was self employed at the time and my company went out of business in 2004. I believe that goldfish did issue a ccj but did not follow up the judgement as i have no assets

 

Capquest have chased me for the last couple of years with the normal letters but i have never received a ccj from them or aknowledged the debt

 

Do i take it that as well as writing to capquest asking for all the documentation, i should also get the papers to the court IE forms 6.4 and 6.5 immediately? does anyone have copies of these forms on this site as i cant find them

 

thanks again

[unclebulgaria67]

Yes you need to issue these forms to the court now. The forms are contained in the link to my last post.

[harrassed senior]

Forms for Setting Aside Statutory Demands:

http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

 

You will need to visit your local court and swear one of the forms.

[unclebulgaria67]

Forms not in link after all.

 

Here they are.

 

http://www.insolvency.gov.uk/pdfs/forms/6-4.pdf

 

http://www.insolvency.gov.uk/pdfs/forms/6-5.pdf

[surreytim42]

hi

 

thanks for the forms, much appreciated

 

in your opinion, what would be considered to be the reason for setting aside? sorry if that is a dumb question but i am out of my comfort zone here and want to make sure i get this right

 

thanks

[mandyjayne]

Oh look Surreytim you have 6 guests reading your thread:p

 

Hi Tim...

 

Have a read of my SD set aside thread from here http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/195656-egg-barclays-lowells-sd-3.html#post2448000

 

It may help you...any questions just ask...Crappyquest are in deep trouble for sending out these SD's willy nilly...we will help and beat them!

 

MJ:D

[surreytim42]

thanks all, i am feeling more confident about this now

 

as a side note, there were no court details on the papers sent by capquest so do i approach my local court?

 

thanks again

[postggj]

Ime Asking The Obviouse Question

 

When Was The Last Time Payment Was Made Either To Crappyquest Or Goldfish

[miss muppet]

Yes, they should usually tell you where the nearest county court dealing with bankruptcy issues is - sorry to put it in such bald terms but thats the way they usually word it.

[mandyjayne]

no court details on the SD....well thats one up for you!

[surreytim42]

hi postggj

 

i have been trying to look up my old bank statements and all i can see is payments to goldfish back in 2004 and crapquest in 2007 for £1 which carried on for 3 months until i was made redundant

 

do these payments taken under extreme duress and bullying on the work telephone make a difference to an application foe setting aside this sd?

[postggj]

Give It A Few Days And All The Info You Will Need Is On This Thread

 

Its Just About Finished

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/258608-capquest-have-issued-statutory.html?highlight=postggj

[surreytim42]

thanks postggj

[babydoll0141917]

subbing

[surreytim42]

hi

 

i have sent all the request forms to capquest and now have the forms 6.4 and 6.5 ready to fill in, can i ask does the fact that i was paying paying £1 a month on these influence this in any way? reading the similar threads the people involved had paid nothing so had not aknowledged the debt in any way

 

I never aknowledged the debt as such but paid this money for a couple of months to stop the 4-5 calls a day that i was receiving, i just wondered how to put this into my reasoning for setting aside

 

All help appreciated

[postggj]

You Have No Wories

 

Just Post Up The 6.5 When Finished

 

If You Need Help, Just Shout

[surreytim42]

Here is the 6.5, comments appreciated, i have omitted the dates for obvious reasons but i do have them correct, i have also put xxxx for my landlords details

 

The Defendant totally disputes the debt.

1. That on (b) xxxxxxx

The statutory demand exhibited hereto and marked “A” came into my hands.

2. That I © Believe that the statutory demand does not comply with the rules of insolvency in that:

The defendant has been unable to contact the person named on the demand for the alleged creditor. This is in contravention of rule 6.2 of the insolvency service.

The defendant has on no least six occasions tried to contact the named person for the alleged creditor; a MR BARRY DAVIES. On the last attempt to contact him on the telephone number provided in the statutory demand I was told that he does not work at that office and he would not be in a position to deal with anything as he is merely a signature on correspondence.

The alleged creditor has failed to serve the statutory demand by personal service, the defendant received the demand via his landlord (xxxxxxxx), who passed the documents to the defendant. The defendant draws the court’s attention to rule 6.3 (2) of the insolvency rules. The alleged creditor, by virtue of the rules, under an obligation to do all that is reasonable for bringing the statutory demand to the debtor’s attention, and if practicable in the particular circumstances to cause personal service of the demand to be effected. Bearing in mind the fact that the alleged creditor did not know that xxxxxx was in fact the defendant’s landlord and would pass any documents to the defendant and therefore this would not fulfil this obligation.

The alleged creditor has not entered the court’s details that would deal with this statutory demand.

On xxxxxxxx by way of a recorded delivery the defendant made a request under section 77 to section 79 of the consumer credit act for copies of the notice of assignment to comply with the law of property act 1925 also requested:

The alleged creditor has not provided a valid notice of assignment

 

The alleged creditor has not provided a legible copy of the agreement that contains the prescribed terms and is executed.

 

The alleged creditor has not provided any compliant default notice as required by the Consumer Credit Act 1974

 

The alleged creditor has not provided any statements for the duration of the account (it not being uncommon that some debts are made up entirely of excessive charges)

 

The alleged creditor has not provided any proof that the alleged debt has been securitised under English law.

 

I believe there are no properly executed signed Consumer Credit Agreements

 

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 demand 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 demand.
  

• 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 demand 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

 

 

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 judge award my costs in this matter as a LITIGANT IN PERSON.

 

As a low income earner 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).

[postggj]

A Bit Long Winded But Fine

[surreytim42]

Ok update

 

I served the papers at my local court today for an application to set aside and got home to a letter from capquest-can someone let me know how to paste it into here?

 

thanks

[tedney]

Hello Surreytim42

Do you have a scanner? if so scan the document, and use this Image hosting, free photo sharing & video sharing at Photobucket to transfer onto here, don't forget to blank off all your personal details, amounts, account etc before posting up.

t

[surreytim42]

thanks Tedney

 

i dont have a scanner available tonight so i have typed the letter out word for word

 

since the start of this post capquest have now sent me 3 SD for various accounts and are now corresponding about all 3, i have done 3 separate applications for SD to the court to cover this, i hope thats the right thing to do

 

so do i keep the set aside actions going and do i reply to capquest?

 

any advice appreciated

 

letter as received today

 

 

Dear

Re: Statutory Demands

Thank you for your letters dated xxxxx.

We can confirm that the documentation you require has been requested from the relevant originator. We will endeavour to get these to you as soon as possible and within the time limit of twelve business days, however this will depend on the originators providing them to us.

Since these debts were assigned to us we have sent you numerous letters on all of these accounts. You have never questioned your liability for these debts and you were making frequent payments totalling £xxxx towards these three accounts. We have had no reason to believe that you weren’t aware of your liability for these debts and as we have not received any payments from you since xxxxx 2008, the statutory demands were sent to you.

Whilst we are awaiting documentation, we can confirm that we will take no further action with the statutory demands and you can consider them as a nullity and we will withdraw the demands. There will now be no need to apply to the court to have these demands set aside.

Once we are in receipt of the documents these will be sent to you. If you have any queries on receipt of the documents we will be happy to answer any questions you may have. After you have the documents we will expect an arrangement for payment to be made. If an arrangement can not be made at this time there is a possibility that further statutory demands will be sent to you.

Yours sincerely,

Legal Support Department

[postggj]

Thats A Template Letter

 

Ive Now Seen Three

 

Just Ignore And Still Go Through The Set Asside Routine