Another Capquest (through OPTIMA) summons, help please.

[Gorang]

Re: Another Capquest (through OPTIMA) summons, help please.

"You are entitled to extend from 04 December 2013, for a further 28 days.

You are entitled to
and
we are agreeing to

means 2 different things in my book so

Would they be be clear of the 28 day extension from the first line?

I don't know is the honest answer, as it will depend on the reader I suppose

The deadline is today though, so unless they give until the end of the working day?

Yes you will have until the end of that day so I would personally phone the court in the morning and see what they say, and pray that you don't get the same clerk as you got before lol

If you get no where with the clerk then I would be inclined to get an email that is VERY clear from the claimant as to the amount of days they have agreed to for the extension then forward the email to the court with a note from yourself

Maybe that is me just being me and staying on the right side of caution, but I think I would rather do that than be on the wrong side of it

Maybe there's no need for a further email but the way I see it is, it won't do any harm

[Gorang]

Re: Another Capquest (through OPTIMA) summons, help please.

"You are entitled to extend from 04 December 2013, for a further 28 days.

However my point in my email below was we will allow you 14 days from when we send you the documents to enable you enough time to file your defence, before we take any further action.

I trust the above is in order."

If that's is all that was in the email from the claimant then after re reading it again

I personally think that it says
Yes your entitled to a 28 day extension
BUT
we will only allow you 14 days AFTER we supply the docs to you

so with reading between the lines MY view is they have NOT agreed to a 28 day extension in that email

Is there anymore in the email or is that it???

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

If that's is all that was in the email from the claimant then after re reading it again

I personally think that it says
Yes your entitled to a 28 day extension
BUT
we will only allow you 14 days AFTER we supply the docs to you

so with reading between the lines MY view is they have NOT agreed to a 28 day extension in that email

Is there anymore in the email or is that it???

After your advice (which I too felt the e-mail wasn't clear in stone) I requested another e-mail which specifically states a 28 day extension. It did take a bloody long time to come through though and I had to phone a couple of time (damn Optima). But her new e-mail states:

For the avoidance of doubt and to clarify the matter, we agree to a 28 day extension for you to file your defence.

I forwarded this on (and copied her in it) to ccdefendants e-mail stating both parties have agreed to a time extension for the filing of a defence as allowed under the Civil Procedure Rules 15.5(2) rules, and that my old e-mails and letter may have been a little unclear therefore here is new evidence proving the 28 day extension.

Now I may phone the court to see if they have acknowledged the e-mails or letter they received today with old evidence, and then inform them of the new evidence if unclear, but if I get put through to an idiot again whos excuse is only "I'm not legally trained" I'll just have to wait until someone reads the e-mail. Am I covered now nethertheless as I have written proof?

Thanks mate.

[Gorang]

Re: Another Capquest (through OPTIMA) summons, help please.

Nice one well done


you are well and truly covered now

well worth the few phone calls and emails as better to be safe than sorry

I personally would wait a few days then ring the court again and get them to confirm to you when the 28 days is up, JUST so you can double check your dates and that no one at their end has screwed up anything

Also keep the pressure on Optima by phoning them every few days and asking them when they are going to produce (if at all)

Keep a good eye on the clock and don't let that extension run out

with 7 days to go of the extension if there is still no change ie they still don't produce the documents, then post back here and we can see what options are available for you (as there are a few different avenues you can take)

If they do produce anything then post up back here asap

Also if you have any further questions then please just shout

[mike123]

Re: [urgent]Another Capquest (through OPTIMA) summons, help please.

Holy crap,

With xmas etc the past week the deadline completely slipped my mind. For some reason, it randomly came to me as I was trying to sleep and luckily the deadline for my 28 day extension is actually 01/01/2014 (I presume until the end of the working day). Therefore I realise this is way way short notice, but can you give me advice of what to do next?

The "documents" never arrived, and I don't think they ever will. Therefore I'm guessing I should file to have the case thrown out or some sort of defence based on that? If you guys could help me asap I'd really appreciate it. Again I apologise with such late notice and the fact its new years eve/day I'm not sure if anyone will be around!? :tinysmile_hmm_t2:

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

To get people up to speed without reading all of the above posts: I have sent a CPR 31.14 request, we had agreed a 28 day extension and no documents have arrived. My defence is due by 1/1/14 (tomorrow).

After doing research all morning (instead of enjoying new years eve), I have found many different opinions.

1) Some are suggesting I file a N244 & draft order and not a defence.

2) Some are saying file a defence, get a allocation questionniare, and can then apply for the case to be struck out then. However I understand once it gets allocated to small track I lose the benefit of CPR 31/N244.

3) Some are saying do both. Submit a holding defence and also submit a N244 & draft order. As per here: http://www.consumeractiongroup.co.uk...p-please/page2

Have no idea which route to follow, think I'm going to go with 3 at this rate. Got a few templates. Advice please?

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

Okay...

I'm going for option 3. I'm going to send a kind-of holding defence and N244 "unless order" at the same time to their e-mail. I'm sending the fee remission form aswell as I'm a student so may qualify under the low income (if they even count it as income).

I'm doing this as I understand when I file my defence it will become a small claim and therefore I cannot use the CPR31/N244 route anymore, I'd have to use CPR18 and draft directions with my allocative questionnaire. Therefore I may aswell give it a go. Due to the time scale, I'm not sure if they'll allocate before they process the N244 but as it's going in the same e-mail then perhaps they will. Guess I will have to wait and see, my fault for letting this slip my mind over xmas.

I've attached my defence and N244 below if anyone wants to take a read and give advice before I send tomorrow before 4pm. I realise the majority of you will be busy celebrating tonight though. Found the templates on here and another forum, no idea if they are perfect or what I'm doing is right or wrong as there is so many opinions, but all I know is I need to submit something.

Have a good new year.

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

Hi all,

I need help again with this case. I filed both N244 order and defence above and basically the District Judge granted my request, and gave them a deadline of 24/02/14 to comply with my CPR 31.14 request or the case would be struck out. As fate would have it, the documents turned up today (three days before). I now have until 17/03/14 to file my final defence. It took them a total of 225 days to comply with my request, perhaps something I could use?

Anyhow, the documents provided are as followed:

• A reconstituted copy of the Credit Agreement
  This has NO signatures on it, as like I said previously I do not think I ever signed one (as this is a catalogue company).
• A copy of the Notice of Assignment from Shop Direct Finance dated 02/11/2010
• A copy of the Notice of Assignment from Capquest dated 2/11/2010 (both same date?)
• Account Summary of transactions
• A copy of Judgement HSBC Bank PLC V Carey (2009) EWHC 3417 (QB) and A copy of Judgement of Lombard Northern Central PLC v Power Hines (1995)

They refer me to paragraph 113 of HSBC Bank V Carey, stating information required to be included in a reconstituted copy of credit agreement. They understand a default notice was sent to me on 04/10/2010, but due to the large number of default notices sent the original one has not been kept and therefore have NOT provided me with any default notice. The Lombard vs Power Hines case refers to no default notice cases, therefore basically trying to say it does not matter. They've also sent me a big 41 page document of "England and Wales High Court (Queen's Bench Division) Decisions, with loads of cases e.g. Emma Carey vs HSBC.

Lastly, they invite me to make a offer of settlement to avoid wasting court time (worried about losing)?

I can provide pictures of all documents if required. My question is where do I go from here? I'm guessing I can argue it is unenforceable since they cannot provide an original copy of the credit agreement nor is their reconstituted one signed. The fact there is no default notice may also help. Any help would be much appreciated!

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

Anyone? :tinysmile_hmm_t2:

[Amethyst]

Hi Mike Just having a read back through your thread. Sorry you seem to have been a bit lonesome since new years xx

Looks like you've done a blinding job though

Have you mentioned when the account with shop direct was actually opened (ie when your agreement would have been signed, had it existed)


On your order from the court does it give a date by which you have to enter your revised defence ? (soz 17/3/14 )

The Lombard v Power Hines case quote will be to cover the lack of default notice...ie. if they can show they sent one its not their fault/problem if you never got it.

So yip, think we need to have a look at the credit agreement. (redact your personal info first)

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

So yip, think we need to have a look at the credit agreement. (redact your personal info first)

Thanks Amethyst!

Attached is a copy of the recon agreement. I do not recall ever signing one, as with the case with these catalogue firms! I believe they may have sent the agreement with the first order of goods but I never returned it.

Also forgot to add, the account was opened 19/09/2008 according to my credit file.

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

Anything to go on there? 7 days until I need to submit defence, thanks

[Amethyst]

Re: Another Capquest (through OPTIMA) summons, help please.

Hiya,

Yes that is how they work. Your defence would basically be that you deny signing any agreement with Littlewoods and do not recognise the reconstruction they have sent you, and you need proof that you ever did sign and agree to such terms when opening the account with them. Under s 61 the agreement has to be properly executed.

61 Signing of agreement.

(1)A regulated agreement is not properly executed unless—

(a)a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

(c)the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

However as the date of the account opening is after April 2007 the judge can accept the recon for fulfilling your CCA request so they are not barred from enforcement and the judge is allowed to use evidence to surmise whether you agreed to those terms when opening the account, and whether the recon contains all the prescribed terms (which it does)

The name and address on the top of the form is that the name and address you had when opening the account?

So on balance as the account is from 2008 and they have supplied the right date recon and it contains all the prescribed terms, it is not properly executed (as no signatures) so you have an argument there, but with the evidence such as statements and payments made etc it is likely a court would deem that you had agreed to those terms.

Therefore to avoid a CCJ you could enter into out of court negotiations (installments or lump sum settlement on the basis the court claim is stayed until such time you miss payments when they could then enforce with a CCJ)

Just my opinion - others may feel the sec 61 argument is stronger but as the account was opened in 2008 there are unfortunately less options.

Hope that helps a little

Sharon

[mike123]

Re: Another Capquest (through OPTIMA) summons, help please.

Therefore to avoid a CCJ you could enter into out of court negotiations (installments or lump sum settlement on the basis the court claim is stayed until such time you miss payments when they could then enforce with a CCJ)

Just my opinion - others may feel the sec 61 argument is stronger but as the account was opened in 2008 there are unfortunately less options.

Hope that helps a little

Sharon

Thanks Sharon. You're advice actually matches that from another forum I signed up to not long ago. I will look deeper into the sec 61 argument however I will perhaps have to explore the settlement option.