C(r)apquest v DangerGerbil

**Amethyst** · 16th April 2014, 23:11:PM

Re: C(r)apquest v DangerGerbil

If you enter a statute barred defence then the onus of proof is on the claimant to show it is not. You have done right in the ccl and CPR requests but a simple stat barred defence should be all that is necessary.

Something like (just by way of example)

__________________________________________________ ______

1. It is admitted that the Defendant entered into an agreement with Original Creditor on or around XX XXXXXXXX 200X

2. The Defendant contends that this is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. In excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

3. The Defendant has had no contact with the claimants regarding this contract since June 2004.

4. The Claimant's claim to be entitled to payment of £xxxxxxxxx or any other sum, or relief of any kind is denied.

Statement of Truth
The Defendant believes that the facts stated in this Defence are true.

Signed …………………………………………
Dated

**DangerGerbil** · 11th June 2014, 20:39:PM

Re: C(r)apquest v DangerGerbil

Firstly, (a much belated) thankyou for the above - I used it (slightly modified for dates) for my defense submission.
Court acknowledged receipt in letter dated 22/04.
And I thought it had "worked" when I received from Drydens what I perceived to be the 'usual' we're putting everything on hold and seeking clients instruction letter first week on 6th May (dated 29/4).

However, I have since received a letter from Drydens (dated 31/05) ..late last week (do they have some special slow postal service?) saying I have 14 days to respond. I haven't got a scanner (could take a pic with phone I suppose), so here it is reproduced:

Our client: Capquest Investments Limited
Account number: xxxxx
Outstanding amount: £8.8k

We refer to the above matter and further to the Defence which you have filed in response to the claim issued against you.

Having now had the opportunity of discussing the Defence with our client, we enclose the following documentation addressing the issues you raise int he Defence adn in support of our client's claim against you:

Copy Statements
Client's Notepad

Given that the attached documentation deals with the issues raised in the Defence in full, we are clearly in a position to progress our client's claim against you and would therefore, invite you to now settle this matter without the need for further legal action.

Please make payment of the sum due within the next 14 days or alternatively contact these offices to discuss possible repayment options.

In the event that we do not hear from you within 14 days, we will have no alternative but to apply to the court to lift the stay on the proceedings in order to progress the legal action commenced against you. It is also likely that any such application will include an application fo summary judgement, given the evidence which has now been provided to you in support of our client's claim.

(costs warning paragraph).

-----
The evidence is the account statement and single page memo pad entries detailing their contact with me. It should be noted, all the "contact" they notated were telephone calls.

From these notes they are indicating the following
- They (re)acquired the account 1st May 07 (memo number 2)
- 08/05/07 Spoke to me on phone where I look to have said can't pay lump sum, maybe monthly £50 via PO by 10th. [memo number 2] Its possible I may have said this in an effort to buy time - I cant honestly remember phone conversation with DCA's 7 years ago?
- 15/05/07 3P X Y PERSON dtr prtner called to pay £50 on her card [memo number 4 | memo reference line: contact with third debtor resident] I suspect my partner (mistakenly?) answered the phone and being somewhat nervous got frightened/badgered into making a payment using her card. She certainly wouldn't have called them.
- 14/05/08 Conv with DTR saying I was dealing with Payplan ref XXXXX [Memo number 5] I did speak to Payplan around then but I didn't go through with it.
- 29/05/08 Conv with DTR. said payplan dealing/ will send 10.00 token PO today [Memo number 6] Seriously?
- 30/05/08 CHQ for £10 credited on the account.

I can see a number of issues with their "evidence":

1) If you have spoken to Payplan, the first thing they tell you once you start dealing with them is not to make any further payments of any kind to any debtor and to direct them to Payplan. Thus why would I send a token £10 PO.

2) How the hell did I get a PO on the 29th to them on the 30th and have it credited into their account (as a CHQ?). If I had spoken to them, it would have been in the evening after work (on the 29th) as A) I could not answer landline at work and B) I never answer DCA/spam calls on mobile in office at work. Don't remember Post Office counters opening late to issue POs. Or send Special Delivery (only way to get it there following day). Certainly wasnt a cheque as I have not had a cheque book with my current bank. At all.

3) The name of my partner is mis-spelt, odd considering it would need to be correct for a card payment to work (could just be typo I guess)

4) The "memo pad" numbers jump. (they're not showing me everything?).

Other observations/thoughts:
- Capquest never responded to either the CCA or CPR - does that matter (now)?
- Drydens didnt respond to the CPR - does that matter (now)?
- Does the Capquest Memo Pad system have a full time-stamped audit trail of (database entries/modifications). Does it have to?
- As Crapquest deals with highly sensitive financial/personal details should they be SOX compliant?
- Do they have to prove their MemoPad system is 'tamper-proof' if I questioned its integrity - or would I have to prove it wasnt?

I see that they are contesting my no contact/no payment defense; I believe the only real payment made was the bullied guilt payment from my partner (I dont remember this - nor does she), but in terms of this it falls outside the SB deadline (it does however call into question my defense/memory/integrity?). The second payment (which miraculously falls just inside the SB deadline) is another one of those wonderful £10 token payment. My problem with that is dis-proving it? (laughable as the dates/timescales appear).

Having said all the above, I am entirely unsure how to proceed, and having read (too) much across (too) many forums worked myself into a heap of fear/ indecision.

Any help / observations gratefully accepted.

**Amethyst** · 11th June 2014, 21:02:PM

Re: C(r)apquest v DangerGerbil

mmm so it's a fair while after your defence was entered - ''In the event that we do not hear from you within 14 days, we will have no alternative but to apply to the court to lift the stay on the proceedings in order to progress the legal action commenced against you. '' so it has been stayed and yes they will have to apply to lift stay. Summary Judgment my backside. You could amend to add in the lack of cca compliance anyway ( Capital One CC (£8.6k). ). We could respond to say no cca...before they try lift stay.

'' 15/05/07 3P X Y PERSON dtr prtner called to pay £50 on her card '' COULD be taken as the last payment/acknowledgement - and that's outside of the limitations period (claim was March 14 so SB period would be March 08 )

The mentions of dealing with payplan aren't acknowledgement of debt - they are a DCA rings you up pestering and to get rid you just say all your debts are with payplan etc.

The £10 is conveniently inside the SB period - however as you mentioned it doesn't really add up factually does it. So if it was a cheque then cheque number please etc - would show on your bank statement being cashed etc. so you could disprove with copy of bank statement from that date. PO was impossibiity.

Could be a SAR DPA request payment? possibly? or just invented ?

**DangerGerbil** · 11th June 2014, 21:51:PM

Re: C(r)apquest v DangerGerbil

Since the original claim, I have had two letters from Drydens (post defence stay dated 29/04 and the above mentioned threatogram dated 31/05). I have had nothing from Crapquest - they did not respond to the CCA request. When you say "amend to add in lack of CCA compliance" does that mean modifying defence? Presumably that would also mean talking to Northampton? I guess the other option you mention of "no CCA before lifting stay" is calling Drydens and pointing out their singular lack of compliance with required legal procedure(s)?

The £10 token payment is fictional. Ignoring the fact making a 'token payment", even though diametrically opposed to Payplan advice (referenced in same memo entry), would be something I would consider to be a good idea/thing to do.. If its a PO, it could not possibly make the timescales detailed in their 'evidence'.
If its a cheque ...ahh, that would be rather tricky as I have never had a cheque book with my current bank (with them since 2005 maybe 2006). And cheques don't clear same day. Perhaps its was a bankers draft?

Ergo the £10 payment is ficticious.

Its not a DPA SAR request as I have never issued one to anyone

**DangerGerbil** · 12th June 2014, 21:17:PM

Re: C(r)apquest v DangerGerbil

Sooo, any advice/wording for next step? If I only have 14 days from the date of latest letter 31/5 (rather than from when it arrived 5/6), then I probably dont have much time left? :tinysmile_cry_t:

C(r)apquest v DangerGerbil