CapQuest threatening Statutory Demand (halifax card)

[ruth101]

CCA request sent by recorded delivery today which they should receive Monday.

 

Should we go for a SAR as well and does this go to Capquest or the OC?

[citizenB]

Subject Access Request needs to go to the Original Creditor - CapQuest will only have information in respect of your time with them.

[Baldyone]

Hi Ruth101

 

I have been following your thread, as I am in similar situation to you. I am interested in any updates you might have?

 

Baldy

[ruth101]

Delay in getting SAR off to the Halifax, posting Monday.

 

As I mentioned credit card number capquest quote is different to last card issued and statements and we didn't want this confuse matters with the SAR to the Halifax.

 

We finally found the last statement from March 2011 where the card number had changed so we can now send the request with £10 postal order.

 

CP's SD was dated Friday 13 April and received the following Wednesday by post, so we want to get the set aside application in before next Friday, posting Wednesday by recorded delivery. Have we got the dates right?

 

Anyone know what % CP proceed with BP if the set aside fails?

Edited April 28, 2012 by ruth101

[citizenB]

Anyone know what % CP proceed with BP if the set aside fails?

 

 

Sorry, no.. from what I see on these forums, they are mostly set aside.

[silverfox1961]

Last year I made a list of SDs issued by capquest that were won, ongoing and lost. Of the won ones (which include cases where neither party attended court) I have 50

 

Of the ongoing cases, I have no idea as I haven't chased them up

 

As for the lost- ONE

[ruth101]

Thanks, Silverfox. Read the one who lost. Seems the judge was having a bad day.

[silverfox1961]

This is why we recommend you set it aside. You might even get costs as well

[ruth101]

Sending SAR request tomorrow - should it be signed? The card number appears to have changed over the years a few times, should we quote all numbers we ae aware of - are they obliged to send us all info on all dealing since the contract stared?

[dx100uk]

yes sign it and inc all numbers and all previous addresses sp'd they have no excuse to wriggle.

 

an SAR should reveal ALL info they hold on your regardless of any info you supply though FYI.

 

dx

[ruth101]

We're completing the Forms 6.4 and 6.5 today and tomorrow to attempt to get it set aside. Rather than pay a solicitor, my husband will take it to the Court Office mentioned in the SD on Thursday (15 days after receipt) and have a clerk witness it.

 

Would they normqlly be able to give him a date for the hearing there and then?

Edited May 1, 2012 by ruth101

[42man]

It doesn't meed to be witnessed anymore, it has changed from an affadavit (for a stat demand) to a witness statement

[ruth101]

42man, is it correct to complete the statement in the third person?

 

With regards to my statement:

 

"The defendant believes that the claimants use of a statutory demand is trite law and merely a tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of the process. It is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the Insolvency Rules. (Are more larger credit card debts leading to more Petitions nowadays?)

 

The defendant notes that the demand was merely posted via the defendants letterbox and that there has been no attempt whatsoever to deliver the demand by hand. I refer to the authority of -

 

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" (Are we not provoking them into taking out proceedings?)

 

The defendant notes that the claimant has quoted a reference number pertaining to be the actual account number, the defendant denies ever having any kind of account whatsoever with this reference number. (This has to be removed now as after no statements for many months after the default we received one final one with this number - never has a card with this number!)

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act. (They have written to say they are getting the reply to the CCA together).

 

The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act. (Easy enough for them to get before the hearing).

 

The claimant has failed to provide any deeds or notices of assignment, nor any statements for the duration of the agreement. (The have written to say they are getting this together).

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement. (Both self-employed, never, never touched PPI)

 

In light of the above evidence, the defendant gracefully requests that the judge grants the set aside of the demand and order the claimant to pay the defendants costs.

 

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."

 

Please, please don't think I am being critical, you wouldn't believe how grateful I am for your advice. You can only work with the information you've been given, I don't have the experience of this, and just looking at it objectively, there isn't one valid reason to set this aside, apart from it being a credit card debt and maybe the courts are being more sympathetic to the DCAs,

 

The only thing is there must be nearly £600 in charges and interest on them and Capquesr have pushed up the debt by more than £200.

Edited May 1, 2012 by ruth101

[ruth101]

It doesn't meed to be witnessed anymore, it has changed from an affadavit (for a stat demand) to a witness statement

 

Sorry if I'm being stupid, does anyone need to countersign in the Statement of Truth section or is this signed by the applicant?

 

Bugger, just missed the court office by 2 minutes.

Edited May 1, 2012 by ruth101

[42man]

The witness statement is supplied by the defendant and signed as such by them.

 

"The defendant believes that the claimants use of a statutory demand is trite law and merely a tactic to frighten the defendant into paying and thereby frivolous, malicious and a gross abuse of the process. It is the defendants contention that use of the insolvency laws as a debt collection tool is an abuse of the Insolvency Rules. (Are more larger credit card debts leading to more Petitions nowadays?)

 

The defendant notes that the demand was merely posted via the defendants letterbox and that there has been no attempt whatsoever to deliver the demand by hand. I refer to the authority of -

 

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" (Are we not provoking them into taking out proceedings?) - No, we are simply using high court authority case law to demonstrate that if they are going to try this then they have to do it properly and not use the demand as a tool fo rdebt collection.

 

The defendant notes that the claimant has quoted a reference number pertaining to be the actual account number, the defendant denies ever having any kind of account whatsoever with this reference number. (This has to be removed now as after no statements for many months after the default we received one final one with this number - never has a card with this number!) - I'm not sure I understand your statement here you say 'this has to be removed now' and then at the end you state 'never has a card with this number' ???

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act. (They have written to say they are getting the reply to the CCA together). - It is hardly your fault that they can't comply with the Consumer Credit Act, at least you have made more than a reasonable attempt to get the paperwork...

 

The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act. (Easy enough for them to get before the hearing). - Easy ? Really ? they will struggle, but even if they did the default notices have to comply and be in the prescribed form.

 

The claimant has failed to provide any deeds or notices of assignment, nor any statements for the duration of the agreement. (The have written to say they are getting this together). -

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement. (Both self-employed, never, never touched PPI) - Have you checked the statements ? you would be surprised to see in a lot of cases where it was actually added without consent - an example here http://www.fsa.gov.uk/library/communication/pr/2008/004.shtml

 

In light of the above evidence, the defendant gracefully requests that the judge grants the set aside of the demand and order the claimant to pay the defendants costs.

 

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."

 

Please, please don't think I am being critical, you wouldn't believe how grateful I am for your advice. I don't have the experience of this, and just looking at it objectively, there isn't one valid reason to set this aside, apart from it being a credit card debt and maybe the courts are being more sympathetic to the DCAs,

 

The only thing is there must be nearly £600 in charges and interest on them and Capquesr have pushed up the debt by more than £200.

 

You can state that as they have not provided statements for the duration of the account and that you believe there are a significant amount of charges that have been added...it being well known that some debts are made up entirely of penalty charges...

[42man]

Did you read this ? - http://www.consumeractiongroup.co.uk/forum/showthread.php?309388-capquest-statutory-demand post #16

[ruth101]

Thanks 42man for answering so fully, I feel more reassured now?

 

With the credit card number point, as mentioned early in the thread we did not recognise the account number quoted and did not have any cards with this number. However, we did some back tracking over the weekend and found letters from two other DCAs quoting the same number and found a statement from Halifax One quoting the new number. This was a single statement and the only one after the account defaulted.

[citizenB]

Dont forget to add a "statement of truth" at the bottom of your witness statement..

 

xx

 

STATEMENT OF TRUTH

 

I believe that the facts stated in this witness statement are true.

 

Signed ..................................................

 

citizenB

 

Dated .................................................

 

 

I have also attached some notes on preparing a witnesss statement for you

 

Guidance Notes on Witness Statements.pdf

[ruth101]

Thanks for pdf file

[ruth101]

Sorry for the spacing/loss of formatting - it comes out fine in Word 2010. To help, our bits are in red,

 

This, with the help of 42man, is what we are posting by recorded delivery to the court specified on the SD, my local court, tomorrow.

 

Do we need to send in a copy of the SD, will be awful, no photocopier only a camera, or do we have to send in the original?

 

Have we done everything correctly? The penultimate paragraph on the first page of 6.5 admits there is a debt, pointless to dispute this. We are disputing the amount and the use of an SD as a means of collecting a 12.5k credit card debt.

 

 

Rule 6.4

 

Form 6.4

 

Application to Set Aside a Statutory Demand

 

 

 

(TITLE)

 

(a) Insert name and address of person to attend hearing

Let (a) Other half’s name in full

 

attend before the Registrar/District Judge as follows:–

 

Date

 

 

Time

 

hours

 

Place

 

 

 

(b) Insert name of debtor

on the hearing of an application by (b) Other half’s name in full

 

the applicant for an order that the statutory demand dated

be set aside.

© Insert date

The grounds on which the applicant claims to be entitled to the order are set out in the witness statement of the applicant made on © 2 May 2012

a copy of which witness statement accompanies this application.

(d) State the names and addresses of the persons to be served

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

(d)

Capquest Ltd

Fleet 27, Rye Close

Fleet, Hants GU51 2GG

(e) State the applicant’s address for service

The applicant’s address for service is:– (e) Our full address

 

 

Dated

2 May 2012

 

Signed

By other half

 

 

 

 

If you do not attend, the Court may make such order as it thinks fit

 

 

Rule 6.4

 

 

Form 6.5

 

Witness Statement in Support of Application to Set Aside Statutory Demand

 

 

 

(TITLE)

 

(a) Insert name address and description of person making the witness statement

I (a) Other half’s full name

 

state as follows:

(b) Insert date

1. That on 19th April 2012 the statutory demand came into my hands.

© Insert one of the 8 following alternatives or if none of them are applicable state grounds on which you consider the statutory demand should be set aside

(1) “Do not admit the debt because…” [here state grounds] or

(2) “Admit the debt but not that it is payable immediately” [state reason], or

(3) “Admit the debt as to £ , and that this is payable but that the remainder is not immediately payable. I am prepared to pay the amount of £ immediately” [state reason], or

(4) “Admit the debt and am prepared to secure or compound for it to the creditor’s satisfaction by …”

[state nature of satisfaction], or

(5) “Say that the debt is a secured debt” [give full details of security and its value], or

(6) “Have a counter-claim (or set-off or cross demand) for £ being a sum equal to (or exceeding) the claim in respect of” [here state grounds of counterclaim etc.], or

2. That I believe that the claimant’s use of a statutory demand is a tactic to frighten me into paying and therefore a frivolous, malicious and gross abuse of the process. It is my contention that use of the insolvency laws as a debt collection tool is an abuse of the Insolvency Rules.

 

I note that the demand was merely posted by standard mail and that there has been no attempt whatsoever to deliver the demand by hand. I refer to the authority of -

 

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"

 

The claimant has quoted a 16-digit reference number for an HBoS credit card and I have never held a card with this actual number. I faxed the claimant at xxxx and, again at xxxx on xx April 2012, the day before they issued the demand to request further details and received no reply. My fax is marked (A) and the heading displays a date and timestamp.

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act.

 

The claimant has failed to provide any copies of any valid default notices as required under the Consumer Credit Act.

 

The claimant has failed to provide any deeds or notices of assignment, nor any statements for the duration of the agreement.

 

The original creditor from whom the claimant purchased the debt has added a significant amount of charges and charged interest on these. Furthermore, the claimant has added a further £260 to the debt, including a £65 increase in March.

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement.

 

 

 

 

 

 

Form 6.5 cont.

(7) “Say that execution on the Judgment of the Court has been stayed” [give details], or

(8) “Say that the Demand does not comply with the Insolvency Rules in that ………”

[state reason]

In light of the above evidence, I gracefully request that the judge grants the setting aside of the demand and order the claimant to pay the defendant’s costs.

 

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."

 

Edited May 2, 2012 by ruth101

[42man]

The defendant firmly believes that the issue of a demand without any attempt to serve the demand in person makes this an abuse of the insolvency service.

 

I note that the demand was merely posted by standard mail and that there has been no attempt whatsoever to deliver the demand by hand. I refer to the authority of -

 

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"

 

The claimant quotes in the particulars a 16-digit reference number for an alleged credit card, the defendant denies having had any kind of account with this particular number. The defendant faxed the claimant at xxxx and, again at xxxx on xx April 2012, To this date the defendant has received no reply. My fax is marked (A) and the heading displays a date and timestamp.

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act.

 

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;

 

The claimant has failed to provide any copies of any valid default notices in the prescribed format as required under the Consumer Credit Act.

 

The claimant has failed to provide any deeds or notices of assignment, nor any statements for the duration of the agreement.

 

The defendant also avers that the alleged debt may have a significant amount of excessive charges, it not being uncommon for debts being made up entirely of penalty charges.

 

The claimant has failed to provide any details of any potentially missold insurance that may have been added to the agreement.

 

The defendant would also like to make it known that the Office Of Fair Trading make it quite clear in their recently updated guidelines -

 

n. making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts

 

The defendant also believes the claimant is in breach of CPUTR2008

 

b) Adhere to all relevant requirements under the

Consumer Credit Act 2006 and any other

relevant legislation.

a) Conduct its business lawfully, comply with

all relevant UK legislation, regulation

and judicial decisions and trade fairly and

responsibly.

c)

Comply with this Code of Practice and

follow any guidance notes issued by the

Board of the Association.

Comply with

debt collection Guidance as

Published by the Office of Fair Trading

(Ruth - although the above is normally used by the OFT and is not 'consumer' law as such, it may assist you in showing the judge what they are up to)

 

In light of the above evidence, I gracefully request that the judge grants the setting aside of the demand and orders the claimant to pay the defendant’s costs.

 

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)

 

"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)."

[ruth101]

Thanks 42man, I feel more comfortable staying in the first person (is this OK?), so here’s 6.5.01a.

I firmly believe that the issue of a demand without any attempt to serve it in person makes this an abuse of the insolvency service.

 

I note that the demand was merely posted by standard mail and that there has been no attempt whatsoever to deliver the demand by hand. I refer to the authority of -

 

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"

 

The claimant quotes in the particulars a 16-digit reference number for an alleged credit card, the defendant denies having had any kind of account with this particular number. The defendant faxed the claimant at xxxx and, again at xxxx on xx April 2012, To this date the defendant has received no reply. Copies of my faxes are marked (A) and (B) and the headings clearly display a date and timestamp.

 

The claimant has failed to provide a copy of the agreement despite a legal request made under the Consumer Credit Act.

 

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;

 

The claimant has failed to provide any copies of any valid default notices in the prescribed format as required under the Consumer Credit Act.

 

The claimant has failed to provide any deeds or notices of assignment, nor any statements for the duration of the agreement.

 

I also feel that the alleged debt may have a significant amount of excessive charges and interest on them.

 

The claimant has failed to provide any details of any potentially missoldinsurance that may have been added to the agreement.

 

I would also like to make it known that the Office Of Fair Trading makes it quite clear in their recently updated guidelines - making undue, excessive or otherwise inappropriate use of statutory demands when pursuing arrears or debts

 

I also believe the claimant is in breach of CPUTR2008

* Adhere to all relevant requirements under the Consumer Credit Act 2006 and any other relevant legislation.

* Conduct it’s business lawfully, comply with all relevant UK legislation, regulation and judicial decisions and trade fairly and responsibly.

* Comply with this Code of Practice and follow any guidance notes issued by the Board of the Association.

* Comply with debt collection Guidance as Published by the Office of Fair Trading

In light of the above evidence, I gracefully request that the judge grants the setting aside of the demand and orders the claimant to pay the defendant’s costs.

 

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)

 

"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)."

 

Is it ok to quote "substantial" when the charges and interest won’t even reduce things by 8%?

BTW, do I need to supply the court with a copy of the SD, or is this Capquest’s job?

Edited May 2, 2012 by ruth101

[42man]

The court will need at least 2 possibly 3 copies.....so take at least 3 additional copies of everything to the court.

 

I wouldn't put first person if your hubby won't be in court or if he won't speak in court....by using 'the defendant' sounds a little more professional

[ruth101]

The court will need at least 2 possibly 3 copies.....so take at least 3 additional copies of everything to the court.

We're posting by recorded delivery tomorrow. Will get 3 copies for them by camera and scan.

 

I wouldn't put first person if your hubby won't be in court or if he won't speak in court....by using 'the defendant' sounds a little more professional

 

Now I understand. What do you think about being there in person? He's not happy about going to court but what if they send someone and he's not there. Do most not attend the Capquest hearings? It would be a day he could be working.

[citizenB]

Ruth, you should be able to obtain photcopies from somewhere like a local post office, they charge between 5-10p a copy.

 

Some estate agencies will also do this for you. I dont think that a "photograph" from you phone will be acceptable.