Capquest sending Statutory Demand..help please -**SD set aside**

[harrassed senior]

Not sure if it would be relevant but you could send the LBA (letter before action) to Capquest, this costs nothing and requires them to send you all the information they will be relying on in Court, this would, of course, include an enforceable Agreement.

 

Here is the letter, but wait and see if others advise sending it, as I am not too sure;

 

REQUEST FOR INFORMATION UNDER THE Civil Procedure RULES.

 

Dear Sir/Madam,

 

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished by the **DATE**, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.

b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with **CREDITOR**.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.

i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

3. Any other documents you seek to rely on in court.

4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.

5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

 

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

I would appreciate your due diligence in this matter.

 

I await your response.

 

 

You will need to mess about with the wording a bit, as it is a SD and not a Summons, but I think some of it could apply.

[jellybabe]

Thank you harrassed senior

[debt4get]

Hi Monx,

Thank you for all your help.

Sorry for late reply, i am on nights at the moment.

 

I will try and have a look at those forms later and see what i will have to fill in. I haven't got a clue to be honest. This is all so confusing and scary.

Is there any templates that could assist me?

 

Well done on winning your case and looking at wheren you are now, it was well worth the hassle.

 

I wished i can be debt free at some point, my credit file is horrendous. But i'm sure i will get there at some point in my life.

 

I haven't managed to get hold of Mr Davies yet, and noted down the times and Dates when i tried so far.

 

Not sure where it is gone, i will keep looking for it, but at the moment i can't find teh application form they've sent me after i CCA'd Shop Direct ages ago. Would it be best to CCA Shop Direct and Capquest again, just in case??

 

Anyway, thanks for everyone's great advice, it is very much appreciated.

xx

 

we will give you a hand to fill in the forms they are not too difficult..try not too worry..we are all here to help

[harrassed senior]

.....and if you have other debt problems after this is over, we will be here to help with those also When I first joined CAG I had 2 SD's and was almost suicidal but look at me today and all that I have learnt from my wonderful friends on here!

[jellybabe]

Thank you so much, both of you and everyone else.xx

[jellybabe]

a quick question please.

 

My family abroad would like to sen dme a ticket to fly over to see them in August. I would be on Hols from the approx.11. until the 16. August.

 

Would that be a problem with my case here??

 

Thanks xx

[jellybabe]

me again....any comments about the letter in post #51? Should i send this off? Or should i just CCA Capquest???

If no one advices against it, i will send this afternoon. Might even send both, the above letter and the CCA request just in case?

 

Thanks,

x

[debt4get]

you can send both...they are for any information relating to alleged debt...and would give you all the paperwork they intend to rely on...assuming they do have any

[jayne123]

when capquest respond about a SA do they send recorded or special delivery does any one know? Am in court today and missed the post and had a note saying I had a special /recorded delivery at sorting office but cant collect till tomorrow!!!!! worried now in case I need it! hope some one can tell me many many thanks

[42man]

Unfortunately....you cannot use the Civil Procedure Rules for Statutory Demands, stat demands are governed by the Insolvency Rules and not the Civil Rules.....

 

CCA request, SAR for good measure....and if you have never received

 

Default notices, termination notices, notice of assignment, deed of assignment, statements for the duration of the agreement then this would form part of your defence......

 

If need be, then you can request the judge to order the other side to produce ALL the documentation stated in your set aside....

[42man]

You will also need to include your CCA request that you made and the recorded delivery slip. It seems they didn't provide your agreement and neither the terms and conditions, so that will make up part of your defence too....

[robcag]

when capquest respond about a SA do they send recorded or special delivery does any one know? Am in court today and missed the post and had a note saying I had a special /recorded delivery at sorting office but cant collect till tomorrow!!!!! worried now in case I need it! hope some one can tell me many many thanks

 

The Special Delivery is probably a late submission of Witness Statement and other documents, as that is exactly what happened to me yesterday, see my post here;

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/269248-capquest-statutory-demand-another.html

 

Good luck today!

 

Cheers

Rob

[42man]

The affadavit will read something along the lines of...

 

The defendant totally disputes the alleged debt

 

Under section 78 of the Consumer Credit Act 1974 A formal written request for any true copies of signed consumer credit agreements was sent to XXXXX via guaranteed 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 several 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

SECTION 78 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.”

 

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 LAWFUL ASSIGNMENT

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim. 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.

 

2.3 Since the claimant explicitly states the notice was “sent” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) 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.

 

3.2 - 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

 

3.3 -. 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.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law.

 

POTENTIAL ABUSE OF PROCESS

 

The defendant notes that the demand was sent by post. The Insolvency Rules state that

 

Rule 6.3 Requirements as to service

(2) The creditor is, by virtue of the Rules, under an obligation to do all that is reasonable for the purpose of 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.

 

In short, the creditor is bound by obligation imposed by the rule, to do all that is reasonably practicable to cause personal service of the SD. To avoid the obligation the creditor is bound to demonstrate that it proved impractical to effect personal service. To achieve avoidance of the obligation he will be expected to attempt personal service, fail in that attempt and proceed to serve by some other way which he believes will cause the SD to come to the debtor's attention.

A debtor will invariably know the creditor wishes to attempt personal service because the creditor will tell him. Where a creditor has attempted but failed, the proper course is for the creditor to seek to make an appointment to meet the debtor. This is usually done by attending to serve personally, failing and pushing a letter through the letter box referring to the visit and leaving contact details by which the appointment may be fixed between the debtor and the person attempting to serve the SD.

The creditor has four months within which to serve the SD. Service after this time will require the creditor to explain himself and account for any dilatory conduct. If the method for service described above does not lead to personal service, then (and only then) service may be made by other means such as first class post or insertion through a letter box (Practice Direction, 18 December 1986, [1987] 1 All ER 604). For this to be acceptable to the court, the creditor must have taken similar steps to those which would persuade the court to grant an order for substituted service of a petition

 

The claimant has made no attempt at any kind of personal service. Whatsoever which makes the defendant believes that this is a frivolous demand and an abuse of the insolvency service. I refer to a leading authority

 

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

 

The defendant also wishes to bring to light a recent ruling made by the Office Of Fair Trading against a similar company.

 

Press releases 2009 -

 

 

OFT imposes requirements on 1st Credit over debt collection practices

 

20/09 25 February 2009

The OFT has taken action against 1st Credit Ltd requiring the company to improve its debt collection practices.

The OFT has imposed 'requirements' on 1st Credit using consumer credit powers, after an investigation found that some of its business processes and procedures failed to meet satisfactory standards. As a result, 1st Credit Ltd and its associated companies must:

• refrain from issuing statutory demands warning of bankruptcy where it is unlikely that proceedings will be initiated
  

 

 

In summary

 

The alleged debt has been in dispute since (date of CCA request sent) in light of this dispute and the frivolous attempt at serving a statutory demand the defendant gracefully requests

The Judge dismisses the demand on the above evidence.

The Judge order the claimant to delete all adverse information held on my credit files.

The Judge orders the claimant to pay my full costs in light of the serious inconvenience distress and damage to my family

This is supported by leading authorities -

Crutchley v Go Debt before HHJ Elleray QC categorically states that

Quote:

22. Service of a statutory demand is a standard step made in debt collection. It

may prompt settlement. If the debtor is unable to pay, then the creditor in

the interests of creditors of the same class, can issue a Bankruptcy Petition.

If the debtor can raise a dispute on substantial grounds then he has a

statutory route for seeking of the setting aside the demand, a risk the

creditor takes. If the creditor knows of the dispute when serving the

demand, then it would be an abuse to make the demand. Such might be

condemned on a set aside, with indemnity costs.

 

 

 

 

And also -

 

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).

I believe the facts herewith in this form are true.

Edited July 23, 2010 by 42man

[42man]

What you need to do now, is number and tidy up the above, read and try and understand what is being said.....and make sure your costs get in to the court so that they are in the file AT LEAST 24 hours before the hearing, if you need help please shout...

[jayne123]

I emailed my costs over yesterday after ringin the court forst to ensure this was ok to do. now to read throught he above and get myself calmed down ready for 2.30 - just so annoyed that I missed the post and that i cannot get the letter till after the court case!! many thanks

[robcag]

I emailed my costs over yesterday after ringin the court forst to ensure this was ok to do. now to read throught he above and get myself calmed down ready for 2.30 - just so annoyed that I missed the post and that i cannot get the letter till after the court case!! many thanks

 

If my experience yesterday is anything to go by, the letter will almost certainly be an attempt to convince the court that costs should not be awarded to you (that was actually stated in the WS I received).

 

IMO, at some point near the very beginning of the hearing, you need to try and object to the late submission of 'evidence', but I'm not sure how you would go about that without the certain knowledge that that is what your missed delivery was. Hopefully, if that is what has happened, your Judge will be as on the ball as mine was, and will be aware of this as CQ will probably have faxed the stuff to the court yesterday.

 

If not, maybe you could try and mention that you have missed a signed for delivery this morning which may have some bearing on this hearing?

 

Cheers

Rob

[robcag]

 

 

If not, maybe you could try and mention that you have missed a signed for delivery this morning which may have some bearing on this hearing?

 

Cheers

Rob

 

PS

Take the card from the Post Office along to prove that you haven't actually seen the letter yet.

[jayne123]

I will put it in my case ready to take - many thanks. was it just you and the judge? so very nervous!

[robcag]

I will put it in my case ready to take - many thanks. was it just you and the judge? so very nervous!

 

Yes, just me and the Judge and the court usher (I think that is what they are called) who as far as I know is just there to show you in to the room and switch the tape recorder on.

 

The other side didn't turn up as they had consented to the set aside.

 

Cheers

Rob

[robcag]

I will put it in my case ready to take -

 

Case? You're fortunate! I used a Morrisons carrier bag!

 

Cheers

Rob

[jellybabe]

Thanks all, i'm getting confused here, not sure who is talking to me and who is relating to jayne123 ????

[robcag]

Thanks all, i'm getting confused here, not sure who is talking to me and who is relating to jayne123 ????

 

Hi jellybabe

 

Please accept my apologies , I didn't realise your thread was being hijacked, but all my replies to jayne123 have quoted her posts.

 

Cheers

Rob

[jellybabe]

Hi robcag,

no worries

[jellybabe]

ok, i will CCA and subject access request Capquest then.

 

I already SAR'd Shop direct way back and still got my statements and stuff (well, there wasn't much more than statements if i remember right.

 

Shall i CCA Shop Diect aswell again, just in case?? Or should this only be handled by Capquest now?

 

Thanks

[jellybabe]

Got my CCA request and SAR printed out.

 

Just need to go PO now to get the Postal orders and then will send them both off in seperate envelopes to Capquest via Recorded or might even go for special, just in case.