Help With A Capquest Claim, Please

**manythanks** · 4th October 2013, 16:09:PM

Re: Help With A Capquest Claim, Please

I have been searching through all my documents, etc. My last payment looks like it will still be within the statutory time frame, as the default was in 2008, according to a diary entry. The credit limit for the account was only ever £200, according to another entry. I can't find any statements, which doesn't surprise me - I didn't have the card for very long, I think, and my ex at the time looked after our documents. We are no longer in touch.

Can anyone advise me? Is there a way to defend the claim based on the very brief particulars or am I risking a worse 'verdict' if I offer a defence at all and it turns out that I do owe? Can I offer my memory problems as any sort of defence if it turns out that I do owe?

Also, it has just occurred to me, if I was to admit to this debt to save the hassle, would they try to claim I owed more on a further claim and cite my admittance of this to back it up?: it says "Part Only of Monies Due".

I did get a letter from Capquest warning me of action - I think - maybe a month ago, but I think I binned it. This probably sounds foolish. I just thought it was another threat that Capquest might try. I thought it might even be a scam.

**manythanks** · 5th October 2013, 17:30:PM

Re: Help With A Capquest Claim, Please

I have been reading up on your site about other situations.

Is it worth me making a CPR request? IF I do decide to defend, and I make this CPR request, can I ask also for the DN and the assignment notice, even though these aren't mentioned in the particulars? I still assume that the lack of these details in the POC points to them having no record of them. Am I correct? I understand that they probably don't have possession of the old files, but surely they'd have the details of the dates that they could have included, if they did indeed exist. I would like to look into defending this rather than just accepting it on face value, so any advice?

**charitynjw** · 5th October 2013, 18:10:PM

Re: Help With A Capquest Claim, Please

Hi manythanks, & welcome to Legal Beagles.

If you have received a court claim, it is important to acknowledge it.
You then extend the time period for submitting a proper defense.

Also, as it's a regulated agreement, you'll want to send Capquest a s78 request for a copy of the original agreement plus all the Terms & Conditions which are applicable to the account in dispute.

Here's one that one of our regular posters, labman, done earlier - http://www.legalbeagles.info/forums/...396#post376396

I'll give someone a nudge for you re the reply to the court claim.

**manythanks** · 5th October 2013, 18:40:PM

Re: Help With A Capquest Claim, Please

Hi, Charity, thanks for the reply.

If I acknowledge the claim to buy more time, but then decide not to defend and accept it (I'm still wondering if I need the hassle!) will I be in a worse position?

Also, are you saying that in this case the CPR request is not used but the s78 request is? Do they have to respond within 7 days and can my defence get an extension for this request to take place?

Thanks for the help! The template letter is much appreciated, Labman.

**charitynjw** · 5th October 2013, 18:55:PM

Re: Help With A Capquest Claim, Please

You could request the info under CPR31, but a CCA s78 places them under a statutory obligation to produce proof that you owe the alleged debt, & to produce a copy of the agreement & the T&C's at the inception of the account, together with any modifications that may have occurred.
You will probably receive, if anything, a reconstituted copy of the agreement, but there are some other notifications which you should have received from the original creditor before they can take any court action - maybe best to leave these for later.
I've put out a cri de coeur for others to give guidance re the acknowledgement of claim.

**labman** · 5th October 2013, 20:26:PM

Re: Help With A Capquest Claim, Please

Hi,

Just to let you know I've read this. I can't help with the court stuff I'm afraid. Just remember that the forum goes really quiet at weekends, so you may not get the reply you want until Monday.

Anything I can do over the CCA side of things I'll gladly help with, or try to point you to someone who can, but court is a place I try hard not to engage with, so my knowledge of procedures is almost non existant. :beagle:

**SpringerSpaniel** · 5th October 2013, 20:45:PM

Re: Help With A Capquest Claim, Please

You could defend the claim putting the claimants to strict proof that you owe them the sum claimed or any sum of money.

**SpringerSpaniel** · 5th October 2013, 20:46:PM

Re: Help With A Capquest Claim, Please

Make sure you either send in the defence within the relevant time or else an acknowledgement of service, otherwise the claimant can get judgement in default, which makes matters more complicated.

**manythanks** · 6th October 2013, 10:45:AM

Re: Help With A Capquest Claim, Please

Thanks for all of the advice, guys!

I understand about the importance of the acknowledgement and the time frames, thanks to reading up on these via your site. I will submit the acknowledgement online as soon as I know more about the risk in defending the claim. I know that all litigation carries a risk, but is it ok for me to just ask them to produce these copies, waiting to see if they can, without this being seen as unreasonable behaviour or a waste of the court's time or carry some other penalty, if it turns out that they can produce something "true" and "honest"? Are you suggesting that - typically speaking, of course - people like Capquest struggle to make these arrangements either at all or on time...I understand that the T &C's might also have issues if they can produce them. Basically, are you saying that it's worth me defending on the balance of probability of them producing the docs, if nothing else?

Also, I noticed on the claim form that my middle name is not included in full - there is just my initial - does this mean anything?

I am otherwise free of debt at the moment (or so I believe!) I can't afford just to pay the whole amount, at least not this close to Christmas, but I can afford something per week. I don't want to admit to the debt on principle, especially if there are things that I can do. I'm weighing up, however, whether I might get a load more charges added if I go to court and lose. I don't really understand what I am doing, lol! It is quite a small debt, compared to other situations, and the fees accrued if I lose might swamp it, if you see what I mean.

I am sure that I had some other questions when I began this post, but I can't remember. Thanks for your time.

**manythanks** · 6th October 2013, 11:01:AM

Re: Help With A Capquest Claim, Please

I've been reading up on the s78 requests. I wish I had taken this alleged debt more seriously, but I suppose I never thought it would come to a claim. If I put a s78 request to them, and I get no response, then they cannot proceed with their claim as my defence would be that I have not been given any proof - is this correct? Do they then lose the case or can they adjourn and it can be left open until they try to produce something? I am not sure how long they have to produce these docs. I know that they have 12 days in theory, but that the courts don't enforce this much. Is that correct?

Ahh, this is the question that I wanted to ask...It's about statutory barred. I don't know for sure when my last payment was, but I estimate that this case has under a year (poss only 6 months) before it is SB. It got passed quickly to some DCA, and I know I never paid any of the DCAs. Do they need to get a judgement within the time frame or do they just need to commence the proceedings before the six years? Does the claim form count as commencement? Thanks!

**manythanks** · 6th October 2013, 11:09:AM

Re: Help With A Capquest Claim, Please

I know that it's the weekend and that a lot of people will be enjoying their days off, so I will hold tight for more advice...thanks.

**charitynjw** · 6th October 2013, 11:23:AM

Re: Help With A Capquest Claim, Please

To give you an overview, debt purchasers buy portfolios of debt from original creditors/legal owners, often for pence in the pound.
The more difficult it is to recover (for all kinds of reasons), the cheaper it usually is.
The new owner then chases it for full face value, although they will often offer a discount for prompt payment.

However, legally they need to be able to prove that the debt is owed.
The purpose of a s78 request is to see what evidence they have.

Further to that, they need to show (if asked) that they are the legal owner, & that they have the legal right to pursue the claim through court in their own right, if at all.

They also need to show that the appropriate statutory steps have been taken before embarking on court action.

What they usually hope for is that they will get an undefended 'default' decision.

If I were you, I would acknowledge the claim & submit an 'embarrased' holding defense, stating that the particulars of claim are too vague, & that a request has been made for further information via a CCA s78.
There would be no harm done in also mentioning CPR 31 as well - gives you 2 bites!

Any correspondence should have proof of postage.
& the s78 will cost you £1.
They will have 12 days (plus postal delay of 2 days) to respond.

Oh, & do not sign with your usual signature. (You can get anti-tamper 'strips' via the internet which you can apply to the letter & sign over them)

**mystery1** · 6th October 2013, 13:02:PM

Re: Help With A Capquest Claim, Please

Costs issues in this case are likely to be minimal as it'll be small claims. Many cases on any track can be settled at any point before judgement on any terms and in quite a few cases where settlement is reached each party would bear their own cost.

If a debtor has submitted a s78 request and it has not been fulfilled then that is a bar to enforcement. Courts have held that starting a claim is not enforcement which leads one to assume that a s78 request prior to a claim commencing is still a valid request. If i was you i'd get a s78 request sent pronto and remember to get a proof of posting or even better recorded delivery.

Technically speaking the claim has not been allocated to a particular track and thus cpr 31.14 is available to you to ask for production of the documents. Having said that, you may find it difficult to get a court order based on any failing of the claimant to comply as many judges will just shrug and say because of the value you are not entitled to use cpr 31.14.

PART ONLY OF MONIES DUE UNDER REGULATED CREDIT AGREEMENT NUMBER (gives digits) BETWEEN CAPITAL ONE BANK (EUROPE) PLC AND THE DEFENDANT THE BENEFIT OF WHICH WAS ASSIGNED TO THE CLAIMANT ON 14-JAN-09. THE AGREEMENT TERMINATED UPON THE DEFENDENT(S) FAILURE TO COMPLY WITH THE TERMS OF AGREEMENT.

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 0.07. ANY PAYMENTS OR QUERIES SHOULD BE DIRECTED TO THE CLAIMANT ON (gives number)

If that is an accurate representation of the particulars of claim then you should ask them to replead their case as it really is dreadful. There is no detail of much at all.

Please don't submit an embarrassed defence, rarely are they a good idea. If we can get non compliance with s78 before the deadline for defence we are in good shape. They will not want to send someone to court for this as it'll cost them more than they can win from you. They are hoping you do not defend and they get a default judgement. They may go all the way but i doubt it. This puts you in a good place if you want to negotiate a settlement.

M1

**manythanks** · 6th October 2013, 15:57:PM

Re: Help With A Capquest Claim, Please

Thanks for all the feedback, information, advice, summing up, support, lol! I just need a bit of prodding into action and to know that it's not a silly idea on my part.

I'm glad to see that my gut instincts on this appear to be correct - that Capquest just expect people to crumble and to take the easiest way out.

I am going to send labman's template s78 letter, by recorded delivery, hopefully tomorrow:

Address

Date

Dear Sir,

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR). I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you intend to send a reconstituted copy of the CCA you must declare the reason why it has been reconstituted and if the original exists and in what form (microfiche) etc.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

I look forward to hearing from you.

Yours faithfully,

TYPE NAME (Do NOT Sign)

I might not get a response, right? In which case the defense is simple enough. Whom do I make the £1 p/o out to - is it Capquest or their legal team, HL, the people I'm supposed to send all documents to?

Thanks for explaining the procedure, Charity. I especially note that I should avoid giving them my signiture plain.
M1 - the particulars of the claim are exactly what I have written in the post, nothing else.

I will acknowledge the claim. Is it best to hold off on my defence until in know what their s78 response is going to be? I will be keeping my eye on the calendar!!

Help With A Capquest Claim, Please