Capquest cour claim defence please help!!

[madmaria43]

Hi
I hope someone can help me i am going crazy with this lot at the moment. My mum has just had a heart attack and everything seems to have happened at once and i cant get my brain working to sort things out. So i hope someone can help me.
Basically I have recieved on the 1st of Nov a county court claim from capquest the claimant re a debt they have bought from capital one. i have never had any corresspondence from this company since way back in 2009 which i ignored because i had an agreement set up with capital one like all my other creditors and It is still is in payment to capital one.
I have no knowledge of them informing me they had sold my loan or that my arangement had been cancelled.
Can they do this? Can they just sell my loan whilst and agreement is in place I didnt think they could or am i wrong? I just need to know what to put in my defence I would realy appreciate any advice. i have acknowledged the claim online and said i would submit a defence that was on the 14th of November i am just worried that i will not get my defence in in time because i dont know how long i have got. is is 28 days from the date i acknowledged the service sorrry i am absolutely brain dead at the moment . hope you can help thank yu

[Amethyst]

Re: Capquest cour claim defence please help!!

Its 28 days from the date you received the claim, so you have till 28th November xx

Keep the payments up to Capital One.

On the claim form, are capital one named as the claimants or just capquest ?

Are you paying via a formal DMP or negotiated lower payments yourself ?

Do you have copies of the agreement with capital one ?

Is the amount they are claiming right taking into account your payments made ?

[madmaria43]

Re: Capquest cour claim defence please help!!

hI Amethyst

thank you for your reply , i must sound really thick!!
So i have till the 28 th of november to put in my defence is that right?
The answer to your questions are as follows-:


Capital one is mentioned on the claim form but not as the claimant and it is worded as follows -:
Monies due under the regulated credit agreement number .xxxxxxxxxxxxxx
Between
Capital one bank (europe) plc and the defendent the benefit of which was assigned to the claimant on the xx/xx/xxxx The Agreement terminated upon the defendants failure to comply with the terms of the agreement an or the statutory notice of default served by capital one bank europe plc.

The claimant seeks interest persuant to section 69 of the county courts act 1984 at the rate of 8% per annum from the date of issue continuing at the daily rate of 0.31. Any payments or queries should be directed to the claimant on telephone number. or fax. or email capquest.

But it does say the claimant is capquest and the adress for sending documents is hl legal and collecitons.
That is exactly what it says and I dont understand what they mean, do they mean they only want the interest?

The answer to the next question is i negotiated payments myself and i have a letter saying they agree to my payment propsal and it accepted which was when i started paying them by standing order.

But if you mean the original agreement when i took out the card no i dont think i have that .

I have no idea if The amount they are claimiing is correct especially after reading the court claim form where it goes on about interest. now i am confused lol!!

I hope that helps once again thankyou for your help it is really appreciated mad maria xx

[frisp]

Re: Capquest cour claim defence please help!!

They want the whole amount owed they are asking for interest at those rates if the case is found for them.

1st thing is to acknowledge the claim with a defense, see attachments you should fill these in but you can't save them so before sending them off you will need to have them scanned to keep track.

Something like this will do for the defense change the dates and names where necessary. Post it up for comments before you send it.

I. Defence

1. I, XXX of XXX am the defendant in this action and make the following statement as my defence to the claim made by Wescot SPV.
2. Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.
3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present.
4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16.
5. In this regard I wish to draw the courts attention to the following matters;
a. The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action.
No particulars are offered in relation to the nature of the written agreement referred to; the method the claimant calculated any outstanding sums due; or any other matters necessary to substantiate the claimant's claim.
b. A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought is clearly illegible and therefore not complaint with the requirements of Cancellation Notices and Copies of Documents Regulations 1983 (3) to provide copies of documents that are “easily legible”
c. A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not fully itemised or served.
d. A copy of any termination notice served under Consumer Credit Act on the alleged account, has not been filed and served.
e. The claimant has failed to disclose whether the alleged agreement is regulated by the consumer credit act 1974
f. The account number mentioned in the particulars of claim refers to a credit card agreement which was regulated by the consumer credit act 1974
g. The claimant claims interest pursuant to s69 County Courts Act and should know that such interest may not be claimed on an agreement regulated by the consumer credit act
6. It is averred that the claimants claim is vexatious and is an abuse of the court process.
7. A CPR31.14 Request for a legible copy of the contract mentioned in the Particulars of Claim was sent to the claimants by registered (to be signed for) post on 13 July 2010.
8. It is averred that Wescot SPV by failing to provide the defence with the documentation requested i the Civil Procedure Rules 31.14 request above within the requested 14 days are seeking to deliberately frustrate the court process and are acting vexaciously.
9. In response to many requests over the intervening years for the claimant (and MBNA, the original claimant) to provide a true copy of the executed credit agreement, including before the Wescot issued the current action, the claimant (and MBNA) has supplied only an illegible document which consists of a one sided signed application form containing none of the prescribed terms required of the Consumer Credit Act 1974.
10. It is averred that the claimants conduct suggests that they do not have an original executed agreement to produce to the court in support of its claim
11. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof to produce; a clear legible copy of the original agreement, to include any documents referred within it containing all the prescribed terms and compliant in every detail with requirements od the Consumer Credit Act 1974 for an enforceable Consumer Credit agreement.
12. I respectfully request the court’s permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim
13. I respectfully request that the court consider striking out the claim under CPR 3.4.2(a) and (b) because it is not fully particularised, does not offer any legal cause of action and their case relies on an illegible agreement has no realistic chances of success.
14. In the alternative I respectfully request that the court consider striking out the claim under CPR 3.4.2(c) because, in light of the claimants’ outright refusal to respond to CPR 31.14 requests, the Claimant is unable to substantiate their claim with documentary evidence.
15. If the court decides not to strike out the claimants claim, the I respectfully seek direction from the court that the proceedings be generally stayed for a period of 28 days to allow the claimant to further particularise its claim and clarify the terms under which it claims against the defendant in such details as required by CPR part 16.
16. Such direction to further require that the relevant documents previously requested by the defendant in his CPR 31.14 request dated 13 July 2010 are disclosed prior to the defendant being expected to submit a defence.
17. If the claimant fails to comply with the courts directions, then the claim be struck out without further notice.

Have they supplied the agreement document with the claim? If not send something like this to the claimant

On 13 Jul 10 I received a Claim Form in regard of the above case issued by you out of the Hull County Court. I intend to defend the whole of the claim
Prior to the issue of proceedings I had delivered numerous requests for the production of a legible and compliant true copy of Consumer Credit agreement on which you rely.
Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a legible and true copy of each of the following:
1. The true and legible copy of the agreement.
You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 Para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.
2. The termination notice
3. A true copy of the terms and conditions applicable at (inception) time of signature
4. Default notice from Capital one
5. The deed or proof of assignment if this is the case.
6. Statements of account.
You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter.
Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.
Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.
Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me.
Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.
If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired.
In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request.
In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence.
Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.
If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.
Please note that should you fail to comply with this request within the timescale I have stated or if you fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.
I do hope this will not be necessary and look forward to hearing from you.

They'll probably ignore the letter but they have to disclose sooner or later what they will be relying on in court and producing this letter as part of your witness statement can't hurt.

At disclosure you send them the document again - as PT says its all about obtaining all the information they will be relying upon at the moment.

[Amethyst]

Re: Capquest cour claim defence please help!!

Hi Maria,

Hold fire on those defences for the moment, they are very generic and have resulted in problems for a few people. It is much better to be short and straight forwards. Ask hl legal to agree and extension for filing the defence, as you can't without knowing the claim is right, to do that write a covering letter with a CPR 31.14 request (this is where you can ask for any of the documents mentioned in the particulars of claim) and as they have mentioed assignment, default and termination you should get all three documents from that. Also send a CCA request to Capital One to obtain the origibal agreement.

Will help with the letters x If HL Legal disagree to th extension we put in a much shorter defence saying you dont have the info, and they refused the extension, and ask the court to order disclosure.

We'll also say the only cap one debt you have is being paid direct to cap one on a DMP still.

Frisp, sorry, I know they are probably ones you are used to using and recommending, but I think in the current climate they are just no longer appropriate, much better to be individual and a true LIP and not be word perfect and overly legal.

Just hang fire or the moment and I'll reply better shortly x

Ame
xx

[Angry Cat]

Re: Capquest cour claim defence please help!!

Absolutely agree!

[frisp]

Re: Capquest cour claim defence please help!!

Not at all worried Ame, I only did it that way as that was the way everyone else was doing it at the time. Wish someone had said that to me it would have saved me some time. However I do think that something has to be said to the court wrt fact that no info was attached to the PoC.

I agree it should be unique to each case

[Judge mental]

Re: Capquest cour claim defence please help!!

Hi:

To add to Ame's post, assignments fall under the Law of Property Act 1925. The documents required for them to prove assignment, and therefore have a right of action are -
a) A copy of the original agreement
b) An absolute assignment, written by Capital one and given to Capquest. (they dont like disclosing this one because shows what they paid for the debt)
c) A notice of assignment (This is a different document to the one above) which must have been sent to you by recorded delivery.

copies should have been attached to the Particulars of Claim and the originals will need to be produced in court.

There is common law called equitable assignment which is applied to assignments which do not comply with Law of property Act, but in these circumstances only Capital one can enforce the agreement and Capquest must join the action as an additional party.

I believe there may also be grounds in these cases to counterclaim, stating that Capquest settled the original contract and any benefit they acquired is equal to and limited to what they paid.

I would suggest your defence is based on you deny the claims made as you have an active repayment agreement with Capital one, you have not received a notice of assignment and Capquest have not provided any evidence that they have a legal right of action, you put the claimant to strict proof.

Regards

Stuart

P.S. I hope your Mum is improving.

[madmaria43]

Re: Capquest cour claim defence please help!!

Hi there everyone thank you so much for your replies it is really appreciated, and thankyou for asking about my mum she has a quadruple bypass on tuesday not looking forward to that at all just want her to get throught it okay you know?

Anyway back to Crapquest Just to clarify with you am i hanging on for someone to put another template defence and letter to capquest asking for documents or am i using the ones above . I am sorry i am being really thick at the moment, my brain really wont work it feels like i am on another planet! Soryy i am not usually this bad thankyoy for your patience i wlll get there in the end .Maria

[frisp]

Re: Capquest cour claim defence please help!!

Leave the defence for now as Ame has suggested but send the 31.14 letter of which there are many examples on this site to crapquest requesting all the info asked for above i.e.

Copies of

The agreement to include T&Cs at inception.
Statements of account showing the payments you have been making
A copy of the Capital one contract assigning the account to Capquest
The notice of assignment sent by Crapquest to you
The termination notice
The defalt notice

[paulb2905]

Re: Capquest cour claim defence please help!!

Just a quick note the CPR31.14 request should be set out something like this;

In the xxxxxxx County Court

Claim Ref: xxxxxxxxxx

between

Capquest

Claimant

and

Madmaria43

Defendant

Request from Defendant to Claimant
Pursuant to Part 31.14 CPR and dated xx/xx/2010

Please supply the following information pursuant to Part 31.14 of the Civil Procedure Rules by (14 days from the date you send)

1. A true and signed copy of the Credit Agreement
2. A true copy of the Prescribed Terms
3. A true copy of the Terms & Conditions at inception.
4. A full set of Statements of account from the time the account was opened.
5. A comprehensive breakdown of the amount claimed eg, principle, purchases, interest, penalty charges etc.
6. A true copy of the Default Notice
7. A true copy of the Termination Notice
8. An copy of the absolute assignment, from Capital One to Capquest
9. A notice of assignment, along with the proof of posting and the signature proving receipt of this.

Please note that in bringing this action the burden of evidence lies with yourselves and subsequent to the findings in the recent Manchester Test cases RECONSTITUTED COPIES of the information requested in 1,2,3,6,7 do not satisfy the "proof purpose" under the civil evidence rules.

Additionally please note that in bringing this action without having these documents readily available could be construed as being an abuse of the court process.

Signed................................ (P R I N T N A M E - dont sign ANYTHING) Dated...................

Madmaria43
Litigant In Person


Send a covering letter saying you have enclosed a CPR31.14 request and that you have 14 days to comply after which time an Unless Order will be sought.

Send the letter RECORDED DELIVERY, should be about £1.40-ish and keep the receipt, also if you can print out the delivery receipt from the postoffice.co.uk (insert the reference number under track & trace)

An UNLESS ORDER is simply an official request to the court that UNLESS they provide the information the claim be struck out.

[TUTTSI]

Re: Capquest cour claim defence please help!!

Did you ever get an answer from crapquest?

and how did your mum get on with surgery, is she fully recovered?

[madmaria43]

Re: Capquest cour claim defence please help!!

Hi Everyone
I have just found this becuase i am facing the same situation again with bryan carter and i had forgotten all about this post that i put on in 2010 so now i am writing to apologise to all of you who gave me advise and asked about my mum the reason being for not updating you on this particular case or coming back on to post was that the day after my mums operation she died which came as a great shock therefore i forgot totally about coming back on here because everything went to the wall after that. so my apologies and thanks to everyone that tried to help me and showed concern for my mum it was really appreciated i am just sorry it has taken so long for me to say thank you kind regards maria xx