Restons Solicitors/Capquest Investments vs ecalid

[Joanna C]

That basically outlines the law on the authorisation issue

". The Claimant Company appears on the register, however the company’s permissions to carry out regulated activities has lapsed and is no longer effective. The Claimant is therefore not authorised by the FCA for regulated activities. .

4. An activity is a regulated activity under the Financial Services & Markets Act 2000 (‘FSMA’) if it is an activity of a specified kind which is carried on by way of business and “it relates to an investment of a specified kind” (see section 22(1) FSMA).

5. “Specified” means specified by an order made by the Treasury (see section 22(5)). Activities and investments are specified for the purposes of FSMA by the Financial Services & Markets Act 2000 (Regulated Activities) Order 2001 (‘RAO’) (see article 4(1)).

6. Rights under a credit agreement are an investment of a specified kind for the purposes of section 22 of FSMA (see articles 73 and 88D of the RAO).

7. Article 60B(3) of the RAO defines credit agreement and regulated credit agreement:
‘credit agreement’ means an agreement between an individual or relevant recipient of credit (‘A’) and any other person (‘B’) under which B provides A with credit of any amount;

‘exempt agreement’ means a credit agreement which is an exempt agreement under articles 60C and 60H;

‘regulated credit agreement’ means any credit agreement which is not an exempt agreement.

8. Section 19 of FSMA prohibits a person from carrying on a regulated activity in the United Kingdom unless he is an authorised person or an exempt person (‘the general prohibition’). Carrying on a regulated activity without authorisation or exemption under FSMA is an offence (see sections 19 and 23 of FSMA).

9. Section 19 FSMA states: -
“19 The general prohibition

(1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is –
(a) an authorised person; or
(b) an exempt person.

(2) The prohibition is referred to in this Act as the general prohibition.”

10. Section 23 FSMA states: -
“23 Contravention of the general prohibition

(1) A person who contravenes the general prohibition is guilty of an offence and liable –
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.”

11. The regulated activity of debt collecting is specified by article 39F of the RAO which provides in relation to debts under credit agreements: -
“Debt collecting

39F. (1) Taking steps to procure the payment of a debt due under a credit
agreement or a relevant article 36H agreement is a specified kind of activity.
(2) Taking steps to procure the payment of a debt due under a consumer hire agreement is a specified kind of activity.
(3) Paragraph 1 does not apply insofar as the activity is an activity of the kind specified by article 36H (operating an electronic system in relation to lending).
(4) In this article, “relevant article 36H agreement” means an article 36H agreement (within the meaning of article 36H) which has been entered into with the facilitation of an authorised person with permission to carry on a regulated activity of the kind specified by that article.”
{Emphasis added}

12. It is clear that the Claimant has been and is continuing to seek to procure payment from the Defendant under a regulated consumer credit agreement contrary to the prohibition as set out in the FSMA 2000.

13. The Claimant cannot rely on an appointed representative to carry out regulated work which requires authorisation under the FSMA as the Claimant as principal must be authorised. The Claimant clearly is not authorised under the FSMA and therefore cannot undertake regulated activities in its own name. Even if the Claimant were to rely on a third party, to undertake debt collection activities, the Claimant must be authorised as a principal." PT Quote END


__________________________________________________ ___________________________


Paras 4 -10 outline the general law on authorisation but the reliance on paragraphs 11 and 12 and the regulated activity of debt collecting specified by article 39F of the RAO we found it early on to be problematic as a defence as it is relatively easy for the claimants to get around it using s. 19 (1) (a) or/and (b) "(1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is –
(a) an authorised person; or(b) an exempt person."


As I am sure you know PT the claimant's without exception, when the defence of unauthorized trading is raised, acknowledge that they are not authorized by the Financial Conduct Authority but then amend particulars of claim to plead that they are either exempt or excluded, or indeed both, all of which to a large extent is evidence based on whether the can prove to the court's satisfaction that they have entered into a relevant/compliant service agreement with an authorised party .

[ecalid]

So what exactly makes them an exempt or excluded entity. And what kind of paperwork would they need produce to the court to reinforce this fact?

This is very intresting.

[ecalid]

Sorry, can I assume that they could produce something from their deeds of assignment to reinforce that they may be authorised?

[Joanna C]

Sorry, can I assume that they could produce something from their deeds of assignment to reinforce that they may be authorised?

It is a different document - to be exempt or excluded they need to prove to the court that hey have entered into a relevant/compliant service agreement with an authorised party . Whether it is relevant/compliant is a different matter and is evidence based.

[ecalid]

Ok so in essence, an unlicensed entity by engaging in debt collection activity is actually contravening s21 FMSA but untill it is challenged and evidence produced is given the blind eye by the courts and the FCA.

However, the address that is on the claim form:

https://ibb.co/mVipF5

I believe is the address that corresponds with their complaints department that is associated with Capquest Debt Recovery on the FCA register:

CAPQUEST DEBT RECOVERY

Principal place of business

Address:
25 Templer Avenue, Farnborough, Hampshire, GU14 6FE, UNITED KINGDOM
Phone:44 1252576404
Fax:+44
Email:
Website:http://www.capquest.co.uk/


Complaints

Address:
12 Booth Street, Manchester, Lancashire, M2 4AW, UNITED KINGDOM
Phone:44 08001300169
Fax:+44
Email:sgreenwood@arrowglobal.net
Website:

The address for the unlisenced Capquest investments Limited is completely different:

CAPQUEST INVESTMENTS LIMITED

Principle place of business

27 Rye Close FLEET Hampshire GU51 2QQ

Fleet 27 Rye Close FLEET Hampshire GU51 2QQ

Steven Greenwood sgreenwood@arrowglobal.net

Basicly the address on the claim form does not represent the company they are intending to be. Where do I stand with this?

i've come to the conclusion that this may not be a viable first defence and probably be applied as more of a tactic to stall or even influence a discontinuence as I get the feeling that ultimately the DCA may have already prepared themselves for this.

[ecalid]

By the way I just wanted to say how much of an outstanding and influencial group of people you are, who give their free time to answer questions for a novice like me.

I would have never gotten the confidence to understand what limited knowledge I have in consumer law if it wasnt for you guys.

[ecalid]

Joanna C pt2537

It's just a thought that the address that corresponds to the complaints department is registered as active on the principle business's licence and is the same address on the claim form (claiments address).

doesnt this then mean that the claiment is operating from a registered address that could be on land owned or rented by the principle business and therefore be construed as pertaining to a license? This can be reinforced by the fact that arrow global principle place of business is registered at the claiments address as being authorised.

Can a department or appointed representative operate as part of the principle business from a name where no identity exists on their license?? Or any other FCA license for that matter. As the lapsed entry for Capquest Investments Limited was located elsewhere and is not associated with Capquest or Arrow on any of their active licenses thus not being regulated and open to do whatever they like without consequence??

so surely if the appointed representative was working on which is essentially registered ground, they would not be an appointed representative as they would be a department, like a complaints department for example?? for our CCA requests. But what gets confusing is when you try and find the co.aints department on the capquest website:

Make a complaint by letter
Submit your complaint in writing to:

Capquest Group
Templer Avenue
Farnborough Business Park
Farnborough
Hampshire
GU14 6FE

which is actually the registered address of one principle business, so what does the complaints department on the registry entry actually stand for?. It stands for the principle business that is ARROW.

Surely operating on this basis could be construed as misrepresentation, as for example if Capquest Investments Limited needed to send their tax returns, they would not be either an appointed representative or a principle business, and submitting written evidence of revenue through due diligence of the business would require the entity to have a UTR number and be VAT registered, which they do not appear to be according to the VIES website.

who gets the money in the end??

lets not forget data controlling etc. Wages, HR, Tax. As Capquest Investments Limited data controlling license is currently active at the claiments address and expires on 31st october 2018 but is nowhere to be found on the FCA register.

Registration Number: Z8814277

Date Registered: 01 November 2004 Registration Expires: 31 October 2018

Data Controller: Capquest Investments Limited

Address:
Belvedere
12 Booth Street
Manchester
M2 4AW

---

This register entry describes, in very general terms, the personal data being processed by:

Capquest Investments Limited

Nature of work - Private Investigation and Debt Administration & Factoring

ICO Registration F.A.Q What is my organisation name and what organisation type should I choose?


You must provide the correct legal title of the individual or organisation. For example:

Sole traders: Please provide the full name of the individual, eg Anna Katherine Smith.

Partnerships: Please provide the trading name of the firm, eg Buttersfield & Co. You do not have to provide the names of the partners.

Limited or public limited companies: Provide the full name of the company, eg ABC Limited.

Groups of companies: Groups of companies cannot submit a single notification. Individual companies who are data controllers must register separately.

They suddenly become geographically identifiable within the boundries of the license of the principle business by the name and address on the N1 Claim Form and the ICO registry, but not FCA. Why not register? Thus surely not actually recognised in any way shape or form of any affiliation with Capquest and/or Arrow via the FCA register. Thus not being a regulated business, so not be able to provide evidence to support that they are an appointed representative.

this is like joe bloggs trying to collect debts without any governing body except having the principle business to dictate what is acceptable behavior. If the claiment is not regulated, doesnt this then mean that they are a rogue department of a licensed business? With no actual geographic identity to the FCA?. Doesnt this mean then if the court asked the claiment to produce a contract as an appoi ted representative, this contract would not have been sanctioned by the FCA?.

This can almost be confirmed by Capquests own entry in their disclaimer:

Capquest Group Limited (registered number 4936030), Capquest Debt Recovery Limited (registered number 3772278), Capquest Investments Limited (registered number 5245825), Capquest Asset Management Limited (registered number 5245829) and Capquest Mortgage Servicing Limited (registered number 05821008) are all limited companies registered in England and Wales with their registered offices at Belvedere, 12 Booth Street, Manchester, M2 4AW. Each company is a separate and independent legal entity. None of the companies have any liability for each other's acts or omissions. Group VAT registration number 844281719.

So in essence, the claiment cannot be licensed and cannot prove otherwise as he cannot claim to be a principle business.

They cannot produce paperwork to say that they are in partnership with capquest or arrow as the ICO and Capquest recognises them as a seperate entity, and having no correlation to any FCA registry entry, the FCA doesnt recognise them as an appointed representative to any part of any principle business.

So essentially are arrow using an unregulated entity to conduct their dirty work?? And if so where do they stand with (b) of S19 (1) FMSA, "an exempt person"

any thoughts??

[ecalid]

I know this might be discernable to alot of people, im hoping somebody can put this into a coherent format.

[ecalid]

Just to mention that I had phoned the FCA today and they do not recognise capquest investments limited as being an AR. They only recognise them as an unlicensed business.

[ecalid]

Furthermore...

i will summarise my interpretation of whats happening at the moment.

so basicly.

Capquest Debt Recover, the one's sending the letters, actually chasing the debts with correspondance - Authorised by the FCA

Arrow Global Limited, the alleged "administer" of accounts for Capquest Investments Limited, registered at the same office as "CIL", seemingly operating two names under a single license.

Capquest Investments Limited, the claimant of which Restons Solicitors are acting on behalf of.

The FCA told me on the phone that court action falls out of their jurisdiction and would not take any action in regards to an unauthorised entity taking court action, which is fair enough. But did say that they do not recognise "CIL" as an AR for "AGL". But why would they?? Because they don't deal with anything post court action so is irrelivent to them.

SO this begs the question, can "CIL" actually operate as a representative of "AGL" from the same office?? As this essentially is not a concern to the FCA, it is now left for the judge to decide if they can act on "AGL" behalf.

However, as the ICO recognise "CIL" as a seperate entity, this must mean that they cannot piggyback on "AGL"'s authorised license as they are both recognised and distinguished as seperate firms by their business numbers: 05245825 & 05606545 even though they reside in the same office. And even if they were covered, the claimant would still need to be the assignee of the debt. Capquest Debt Recovery surely cannot operate as an AR for an unlicensed entity, nor can they act on behalf of "CIL" as a principle business as capquest explicitly recognises "CIL" as a seperate entity.

"CIL" says explicitly in their disclaimer that they are the same registered office as "AGL" and the account is administered by "AGL" so why are Capquest Debt Recovery managing the debt??

It looks like they get around the need to register an AR by waiting to comit to court action and then use the other firm at the opposite end of the table to take court action and then presenting an agreement between the two parties to the judge in the case of an unauthorised license defence. It has now totally skipped any need for an AR because the FCA can't intervene.

So ultimately, Capquest Debt Recovery must own the debt, it must have been assigned to them and this must be the case as "CIL" is not registered to undertake action prior to court and action could be construed as instructing somebody else to collect debt on their behalf. And it's worth noting that Restons Solicitors refer to "CIL" as "Debt Purchasers" therefore you would think that they MUST be registered.

Its worth noting that Capquest Debt Recovery frequently refer to themselves as the owner of the debt. So who actually OWNS the debt? If there is two seperate firms attempting to collect it?


I'm hoping that somebody will come along and dissect this theory as albiet with my limited knowledge in law, this makes complete sense to me.

[ecalid]

Can I just make make a point of saying that after reading through the endless correspondence that Restons have sent me. They did say back in August 2017 that they will inform their client to make an application to strike out my defense and enter a judgement against me for the full amount claimed.

this was before they sent the letter acknowledging receipt of my cca request to capquest.

does this change anything??

[mystery1]

". The Claimant Company appears on the register, however the company’s permissions to carry out regulated activities has lapsed and is no longer effective. The Claimant is therefore not authorised by the FCA for regulated activities. .

4. An activity is a regulated activity under the Financial Services & Markets Act 2000 (‘FSMA’) if it is an activity of a specified kind which is carried on by way of business and “it relates to an investment of a specified kind” (see section 22(1) FSMA).

5. “Specified” means specified by an order made by the Treasury (see section 22(5)). Activities and investments are specified for the purposes of FSMA by the Financial Services & Markets Act 2000 (Regulated Activities) Order 2001 (‘RAO’) (see article 4(1)).

6. Rights under a credit agreement are an investment of a specified kind for the purposes of section 22 of FSMA (see articles 73 and 88D of the RAO).

7. Article 60B(3) of the RAO defines credit agreement and regulated credit agreement:
‘credit agreement’ means an agreement between an individual or relevant recipient of credit (‘A’) and any other person (‘B’) under which B provides A with credit of any amount;

‘exempt agreement’ means a credit agreement which is an exempt agreement under articles 60C and 60H;

‘regulated credit agreement’ means any credit agreement which is not an exempt agreement.

8. Section 19 of FSMA prohibits a person from carrying on a regulated activity in the United Kingdom unless he is an authorised person or an exempt person (‘the general prohibition’). Carrying on a regulated activity without authorisation or exemption under FSMA is an offence (see sections 19 and 23 of FSMA).

9. Section 19 FSMA states: -
“19 The general prohibition

(1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is –
(a) an authorised person; or
(b) an exempt person.

(2) The prohibition is referred to in this Act as the general prohibition.”

10. Section 23 FSMA states: -
“23 Contravention of the general prohibition

(1) A person who contravenes the general prohibition is guilty of an offence and liable –
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.”

11. The regulated activity of debt collecting is specified by article 39F of the RAO which provides in relation to debts under credit agreements: -
“Debt collecting

39F. (1) Taking steps to procure the payment of a debt due under a credit
agreement or a relevant article 36H agreement is a specified kind of activity.
(2) Taking steps to procure the payment of a debt due under a consumer hire agreement is a specified kind of activity.
(3) Paragraph 1 does not apply insofar as the activity is an activity of the kind specified by article 36H (operating an electronic system in relation to lending).
(4) In this article, “relevant article 36H agreement” means an article 36H agreement (within the meaning of article 36H) which has been entered into with the facilitation of an authorised person with permission to carry on a regulated activity of the kind specified by that article.”
{Emphasis added}

12. It is clear that the Claimant has been and is continuing to seek to procure payment from the Defendant under a regulated consumer credit agreement contrary to the prohibition as set out in the FSMA 2000.

13. The Claimant cannot rely on an appointed representative to carry out regulated work which requires authorisation under the FSMA as the Claimant as principal must be authorised. The Claimant clearly is not authorised under the FSMA and therefore cannot undertake regulated activities in its own name. Even if the Claimant were to rely on a third party, to undertake debt collection activities, the Claimant must be authorised as a principal." PT Quote END


__________________________________________________ ___________________________


Paras 4 -10 outline the general law on authorisation but the reliance on paragraphs 11 and 12 and the regulated activity of debt collecting specified by article 39F of the RAO we found it early on to be problematic as a defence as it is relatively easy for the claimants to get around it using s. 19 (1) (a) or/and (b) "(1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is –
(a) an authorised person; or(b) an exempt person."


As I am sure you know PT the claimant's without exception, when the defence of unauthorized trading is raised, acknowledge that they are not authorized by the Financial Conduct Authority but then amend particulars of claim to plead that they are either exempt or excluded, or indeed both, all of which to a large extent is evidence based on whether the can prove to the court's satisfaction that they have entered into a relevant/compliant service agreement with an authorised party .

That is surely a dangerous game to play, as time goes on ?

Evidence will surely build of a deliberate lie furnished by a statement of truth ?

M1

[ecalid]

I would like to say in regards to evidence pertaining to a contract between two groups that the companieshouse.gov sees "CIL" as active but have provided no evidence to support Capquest Groups involvement a PSC and surely would be evidence against such a contract existing, even if this contract was between "CIL" and Arrow Global, as they are not registered as being a PSC or "CIL" being an AR to Arrow global. As the capquest disclaimer explicitly says that each group is their own legal entity and does not take responsibility for their actions.

Surely a contract provided by the claimant cannot supercede the disclaimer set out on their own website if the statement proving otherwise has been withdrawn from the companieshouse.gov website. Therefore not lawfully identifying which company controls which, thus requiring the need to be FCA authorised as they would not appear to be an AR by the FCA and would be their own principle business.

also removing "CIL" as beig the debt owner and the debt ultimately having not been assigned properly. As the only link they would have to any FCA authorised entity would be where they say in their disclaimer that accounts are administered by arrow global, which appears to be completely seperate to capquest group.

so there is one company who is authorised, doing the letters and the phonecalls and the chasing.

and another taking action through the court. Both not being linked to eachother.

surely in court they would have to produce a contract that says they are entitled to share information with other companies in their house. However if these companies are not liable for each others actions as stated in the disclaimer, does the contract actually supercede the disclaimer as surely the information that is given to the public remains at the top of the pyramid, as they would not want to be accused of misinterpretation??.

[ecalid]

I can only surmise that I must be talking absolute twoddle as nobody seems to be giving much input on this subject.

I do apologise, it is difficult trying to integrate into a community where your own knowledge is limited by experience. Although I am a firm believer of contention being a good recipe for consensus.

[Diana M]

There's an old adage which goes "if you ask 50 lawyers the same question you'll get 50 different answers".

There is no one answer to your question and there have been two different legal argument/approaches posted on this forum by two different law firms.

Lawyers litigate in different ways.

Di