CapQuest SD - i want to end this once and for all!

[jo5ephedward5]

OK here’s my saga with CapQuest – and it’s a beast dating back to 2004/5 which was when if I recall correctly, they were Financial Trace and Collect.

I have most letters dating from Oct 05 however but I think I am missing a couple that got lost when I moved flat

Mid 2004 I start getting letters and calls from CapQuest regarding an alleged debt from Halifax for a Bank Account. The figure was approx. £1800

I ignored them for as long as I could and then started getting letters from Keppe and Partners threatening legal action.

I believe in my panic and as at the time I owed a few other creditors, I sent them a schedule of my current outgoings and agreed to pay them £25per month [oh how naive I was back then]

This was only agreed as a 6 month measure and was to be re-assessed after 6 months.

Oct 2005 I got call form a very polite woman stating that they really needed to increase my payments to £100 per month as the £25 a month was not reasonable due to the amount owed.

I argued that my financial situation was actually worse than before due to re-locating to London and that if anything I would like to reduce payments…after her talking me down and asking me to borrow off a family member or a bank I agreed to £50 and said I would set up a direct debit...

This is when I started thinking straight – I don’t recall owing anything to Halifax many other firms but not Halifax…I don’t think I was able to secure an overdraft…and I actually moved banks due to lack of facilities.

I did an internet search and found a site called grumbletext; they advised me to stop paying and send a CCA with £1 to CapQuest, which I did. (this and all letters here on have been sent recorded delivery).

The letters/events after this are as follows:

Oct 05 - CapQuest – Please fill in the DD form for £50

Oct 05 - Me – filled in the DD form and sent off – immediately found Grumble Text and canceled the DD as soon as it showed on my account

[Oct 05 - CapQuest – thank-you for your DD form, please confirm the details are correct

Apr 06 - Me – after months of reading articles on the net I sent the CCA but added “I am writing in regards to the above account. I will no longer admit liability for these debts without proof that they are mine. Please find attached the correct documentation for this claim” the standard CCA template followed

May 06 - CapQuest – Thanks, your account is on hold for 14days whilst we gather the info.

Jun 06 – Me – non compliance letter.

Jun 06 – CapQuest - we have contacted HBOS and the info will be with us soon – we will be in touch within 14 days.

Jul 06 – CapQuest - please find attached a copy of your credit agreement – this was a single sheet with my signature on it and a date in 2001 – it is a copy of the form that grants permission to do a credit search and says Halifax may possibly offer me an account if successful...there was no other documents included.

Jul 06 – Me – letter to say I was disappointed they had failed to comply and gave them basically another CCA with this prefix “I would like to bring it to your attention that the document you have provided is a copy of an application form for a Halifax account – this is not an agreement, a statement of account or a deed of assignment, this is in no way related to the information I have requested on several occasions from you.” [i know I shouldn’t have bothered with resending the CCA part but I was new to the game back then]

*missing letter from CapQuest* a letter from Halifax that was very ill written and had wrong address info that stated the debt was given to CapQuest and that all correspondence was to go through them – there were no Halifax contact details on it [just there logo and the registered company info in the footer] – I have somehow lost this.

*missing letter from me* I sent a letter somewhere here asking for a refund on monies paid to date due to non compliance

Jul 06 – CapQuest – Letter that sated I would be getting no monies back and I would be paying up. They state they have been dealing with the account since 04 and I had made no indication that the account was in dispute prior to the CCA and that paying was acknowledging the debt. They have also stated that they have provided me with a true copy of the agreement but they have requested another copy from HBOS for my records, they also return my £1 postal order (they never cashed any that have been sent).

Jul 06 – Me – letter to point out that they have still not complied so I will not be paying until the comply with the CCA

Jul 06 – Me – letter to state that the account was indeed in dispute and they are avoiding the request – also stated that they will not be able to proceed with legal action as threatened due to the non compliance.

Jul 06 – CapQuest – Letter before Action

Aug 06 – Me – Letter to complain about harassment via phone calls, state the telecommunications act (2003) and tell them to stop calling me

Aug 06 – official letter of complaint sent to Trading Standards / CapQuest – stated that they have harassed me, sent me threatening ‘solicitors letters’ even when I was paying them due to feeling I had too. Mentions a certain call that was purely abusive from CapQuest. Failure to comply with CCA, default placed on my account with no notice being issued,

*Trading Standards met CapQuest in person and said they have assured them they have the correct info and the right to collect the debts – TS are satisfied that they will contact me in due course...*

Aug 06 – CapQuest – request a monthly sum of my choice above £5, and enclose their bank details to allow me to set up payment.

Aug 06 – Me to Halifax – S.A.R - (Subject Access Request).

Aug 06 – CapQuest – your account is on hold for 14days.

Aug 06 – CapQuest – thanks for the complaint, your account is on hold for 14days.

Sep 06 – Halifax write with details of a credit card I used to have and the statements, no credit agreement and this is not the account in question.

Oct 06 – Me to Halifax – non compliance with S.A.R - (Subject Access Request) – where’s the rest basically?

Oct 06 – Halifax [posted to an address I haven’t lived at for 3 years & despite Halifax previously communicating with me at the correct address!!] – basically says sorry you are not happy, unfortunately I am unable to help with other accounts as I do not have a record of them, please contact the bank accounts dept. (I never followed this up as I got it 6 months later from my parents house)

Mar 07 – I contact Trading Standards as I’m still getting hundreds of calls off CapQuest – TS inform me that CapQuest have been trying to post me recorded proof to comply with the CCA.

Mar 07 – Me – Letter to give my new address details and ask for the info to be forwarded.

*I think I have the stuff they sent but it was just some random statements – they didn’t help determine if the account was open or closed or owed money etc*

Jun 07 – CapQuest – offer to reduce interest on the account [£650] to make the debt only £1900.

They asked me to pay £1 per month and they will pay 30p now I work that out to be approx 122 years – I’d say that’s avoid offer on that basis![/font]

Jun 07 – CapQuest – details of a case officer appointed to deal with the litigation of this case

Jul 08 – CapQuest – little card through my door saying they called and I was not around and to call the number on the back...this was posted so I would say they did not call round!

Aug 08 – CapQuest – Letter with threat of Statutory Demand

*Changed my number as so many calls off CapQuest are getting stupid – same recorded message left 2 times every day!*

Oct 08 – CapQuest – Statutory Demand

If it will help anyone I can scan in and email [minus personal details] the letters I have on record.

I called Halifax today and asked if they had any record of sending me a deed of assignment in June 06 – after some time on hold they confirmed that all the information they had on this account was it was closed…no other paperwork or details remained on their system – they are confirming this by letter to me. They also said if CapQuest have not forwarded a true copy of the alleged agreement then they would not be getting one from Halifax as there wasn’t one on the system.

So if you’re still with me…Ideally I would like to do the following:

Get the Statutory Demand set aside [i assume the non compliance of the CCA is enough for this?]

Claim back costs incurred

Claim back monies paid in 2005 [i have no record of how much this was]

Claim back interest etc etc

Report to everyone who will listen and get preferably get this firm put out of business for not dealing with things correctly!

What are the chances of this happening and how do I start the process of having the SD set aside?

Edited October 15, 2008 by jo5ephedward5
formatting!

[42man]

Firstly Jo....well done for keeping such an excellent log....may I ask a few questions ? when did the stat demand arrive ? how did it arrive ? 1st class/2nd class ? by hand ?

[42man]

What you will need to do is to submit forms 6.4 (set aside form) and 6.5 (accompanying affadavit) to your local county court (ring them first to check that they handle bankruptcies / insolvencies - if they don't they should be able to tell you the nearest that does).

 

You can find the forms here - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/86067-getting-statutory-demand-set.html

 

Once you have filled out the forms, you need to take them along to the court within 18 days of you receiving the demand, ask the court staff to 'swear in' the affadavit and any accompanying documents that you mention in the affadavit (such as the CCA request/recorded delivery slip) The 'swearing' in is usually free, solicitors will normally charge about £5 to do this, and central London courts I believe charge £12.

[crazymom]

I had to google the Stat demand to understand what it meant and it surprised me a bit as although its the first step to bancrupcy its also been said that 90% of them are bluffs to scare you!!!!!!! Unbelievable!

[42man]

Have a read through some of these recent wins against other debt collection agencies....

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/134225-advice-please-sd-received.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/156970-omg-connaught-first-credit.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/157201-statutory-demand-capquest-425-a.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/103839-cca-1st-credit-connaught.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/161411-off-court-within-week.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/151149-help-pls-process-sd.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/135078-me-1st-credit-stat.html

 

If you want some help with a defence or you aren't sure what to do please shout....!!

[jo5ephedward5]

Firstly Jo....well done for keeping such an excellent log....may I ask a few questions ? when did the stat demand arrive ? how did it arrive ? 1st class/2nd class ? by hand ?

 

Hi 42 - it arrived day before yesterday via 1st class - its dated the day before this.

 

I assume i have 18days from the day it was recived and not the day it was sent...

[miss muppet]

Right, first things first, download the form for set aside of the Statutory Demand from the internet, think its 6.4 but search Statutory Demands.Yes, you are right you want it set aside as account is in dispute due to non-compliance with CCA, have a look around the site,sorry, one day I will learn link back (no doubt someone will be along soon who can)Me v 1st Credit by GaryH is a good one. Once you have completed the form you take it to your nearest court that deals with this and get the affadavit because thats what the form is signed in front of legal person there. Don't forget to get a copy for yourself (some courts charge £5 for this). You will then probably get a set aside hearing, make sure you are well clued up on the various points of law (42 Man) (pt) and (surfaceagentx20) are excellent on this and then when you win the set aside ask for costs,again on the me v 1st Credit thread.

 

With regard to claiming all the money back you have paid don't try to run before you can walk, the important bit is to get this statutory demand set aside.

[42man]

Whether it is a threat or not I would never ignore it....debt collection agencies do carry these through to bankruptcy !! In my view it is easier to get a judge to set aside a stat demand than it is a bankruptcy !!! especially as most judges do NOT like debt collection agencies using the Insolvency Service as a debt collection tool for disputed debts....!!

[miss muppet]

Crikey, they beat me to it - lol:D

[42man]

1st class post is NOT an acceptable way of serving a stautory demand unless there is an affadavit on file from a process server and a judge has granted substituted service, then this is an abuse of process ! PLUS the debt is clearly disputed as you have the proof of the CCA request AND Capquest know this.....and despite this and the hard work you have done....you are going to 'fillet their donkey'

 

If you need some help filling out the affadavit let me know....

[Duffers Mum]

I've recently had a SD from 1st Cretins and followed the excellent advice given by members of this site.

 

Found the whole process of filling in the set aside application and affidavit relatively easy and the swearing it in front of a clerk at the county court took about 5 minutes, that was on Monday, today I've received the hearing date for the set aside whichis in a couple of weeks, i will also be applying for costs. Am hoping they will inform court they don't intend to proceed but I will turn up anyway.

 

I found the whole thing daunting to start with but now feel totally in control. The important thing is, don't worry, just make sure you get the application in within the timescale.

 

Good luck

[42man]

And yes 18 days from when you received it....

[jo5ephedward5]

i can see i have my work cut out...i'll get the forms filled in and sworn asap then [prob next week].

 

will come back for advise should i find i need it.

 

I was feeling pleased that this was being forced to be dealt with - i just got in and have a letter of lowel for over 8K to Cetelem! - happy days!

[jo5ephedward5]

Ok i'm dealing with this today - can someone help me!

 

I really don't have a clue where to start - is there a step by spet guide and what do i put in my reasons for having it set aside? - i don't aknowledge the debt and they have not complied with the CCA...?

 

On sheet 6.4 do items like dates to attend etc need to filled in at the court?

 

and can i have it sworn at a solicitors or do i need it doing at a court [is it free at a court and do i need an appointment?]

 

all help greatfully recived

[jo5ephedward5]

I just came off the phone to Halifax who state they have no notes of my call last week! - typical, they have still stated they dont have any info on this acount to hand but they ae investigating asap and will get me a letter out in the next 10days to confirm they have no info regarding this account on their system - i'm sure there is info there if they dig deep enough but to be honest i'd rarther they didn't!

[42man]

Yes you can have it sworn in at a local solicitors, (usually costs £5)....ring your local solicitors....

 

I would be putting on the affadavit...

 

I totally dispute the claim.

 

The alleged creditor has not provided a credit agreement with the prescribed terms. (this will not be relevant if it is a bank account though Jo)

 

The alleged creditor has not provided any default notices in the correct manner

 

The alleged creditor has not provided any statements for the duration of the account. (it not being uncommon for debts to be made up entirely of excessive penalty charges)

 

The alleged creditor has not provided any notices of assignment

 

DEFAULT NOTICE

 

 

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119
  

 

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, (it not being uncommon that some debts are made up entirely of excessive 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

 

 

Also Jo....try ringing the contact on the demand.....if they don't put you through then also write...

 

Despite trying to telephone the contact on the demand, I have attempted to speak to the person named in the demand but am being refused access. This I believe to be an abuse of the process as - A statutory demand must show a named person or persons from the Creditor or their agent/solicitor whom you can contact directly. This is Rule 6.2 of The insolvency Rules 1986.

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

 

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

 

I therefore request that the judge set aside the demand and gracefully request that it is ordered that the alleged claimant pays my costs as LITIGANT IN PERSON

 

 

 

 

 

 

 

[42man]

You might also like to add this at the bottom..(Edit as required)

 

As a lone parent/low income family 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).

[42man]

For the costs aspect you need to fax / send them so they arrive 24 hours before the hearing (if it gets to a hearing)......(ring the courts every week just to check that any post the courts have sent you hasn't gone missing !!!)....

 

You can use this form that Surfaceagentx20 pointed to here - but make sure it says LITIGANT IN PERSON COSTS - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/156641-capquest-statutory-demand-help-4.html#post1765170

 

You could say for example...

 

LITIGANT IN PERSON COSTS

 

10 hours research into Insolvency Laws @ £9.25 per hour

10 hours research into the Consumer Credit Act 1974 @ £9.25 per hour

Postage

Parking

Mileage at 40p per mile

[jo5ephedward5]

It is a bank account - are you saying they are not covered by the CCA? there was surly a set of terms and conditions and signed agrement?

 

The form states i should contact Johanna O'Keefe - suppose i get through to her what am i saying? - i dispute this as you haven't provided me with any info?

 

they have sent me some statements a long time ago - non of which i have, they didn't really tell me anything...

 

they also sent me a copy of the application form

 

the other item i had was a letter from Halifax - now Halifax dont think they sent it as its written so badly (the mistakes below are thiers not mine!)and other than the registered office listed in the footer on the leter there are no contact details on it, phone numbers or an address at the top [i thought i'd lost this but i've just found it!] - it says:

 

I am writing to inform you that have sold your account to CapQuest Investments Limited.

 

This means that the effective owners of the above account are now CapQuest Investments Limited.

 

CapQuest Investments Limited have appointed one of their group companies, CapQuest Debt Recovery Limited to manage your account on their behalf. All contact regarding this account should now be directed to CapQuest Debt Recovery Limited on telephone number 0870 0843535. (national rates appll)

 

I confirm that the amount outstanding on your acount as at was £2310.59.

 

yours sincerly

 

 

Euan McPherson

 

then there is the footer which has halifax registered office details in it...there is somthing thats not right with this letter in my opinion!

[jo5ephedward5]

 

The alleged creditor has not provided a credit agreement with the prescribed terms. (this will not be relevant if it is a bank account though Jo)

 

 

 

this worries me somewhat as no one has mention this being an issue before - this means the CCA request i have sent have been pointless if they do not have to provide a credit agrement?

Edited October 20, 2008 by jo5ephedward5

[42man]

Unfortunately, the agreement request only covers loans, credit cards, HP agreements....however you may like to include that you have sent a Subject Access Request to the original creditor also.....when was the last time you made a payment towards this debt ?

[42man]

It is substantially disputed to due excessive penalty charges too, and no notice of assignment from Halifax either and no default notice either.....

[jo5ephedward5]

I last paid CapQuest Jan 06, i'd been paying for maybe 12 months as they made me feel like a criminal on using solicitors letters and horrific telephone calls - i felt i had no choice untill i got a little savvy and stated to notice contradictions in their letters and calls - ie a letter saying one thing and calls telling me another.

 

the debt is definatly in dispute - i wish i'd never paid them as i'm cirtain it woudl be Statute Barred by now!

[42man]

Is there by any chance a clear gap of 6 years where you didn't pay anything ?

[jo5ephedward5]

nope! - its def not statutue barred now as i paid CapQuest, i would like to think that as i felt forced into paying them that i could fight this and get my money back - espesialy if Halifax come good with paper work to say they can't provide info - Halifax failed to respond to the SAR in June 2006.

 

the account was opened in 2001 and i think i stopped using it in 2002/2003 but can't be sure but i really dont think i had any outstanding balance - if i did it wasn't 3K worth!

 

am i royally stuffed with this one?