CAPQUEST SD and CCA repsonse

[diaz101]

Many thanks for taking the time to view my post, any help greatly appreciated as im getting quite stressed about this.

I have recently received a statutory demand for bankruptcy form Capquest with out ever receiving any other paperwork. Subsequently I applied via the CCA 1974 Act for the credit agreement from them and also a subject access request to Halifax(the original creditor). I received the attached files from Halifax and none as yet from Capquest even after the time limit has expired (letters sent 27/11/2008).I would like to know if this is actually enforceable as I don’t think it is for the following reasons

a)Its an application form not an credit agreement.
b)Does not meet the requirements as laid out in the 1974 Ac for specific details such as credit limit, cancellation terms etc.

If this is the case that it is unenforceable can I be informed of the actual missing terms etc. so I can present this to the judge at the hearing to get this set aside and if its unenforeable how do i get this debt removed and the default (which i presume i have, as i never had any paperwork about this)etc. if indeed i can.

Any help is greatly appreciated on the best way to deal with this.

http://s599.photobucket.com/albums/tt71/simondiaz_101/?action=view&current=DOC003_Page_1.jpg

http://s599.photobucket.com/albums/tt71/simondiaz_101/?action=view&current=DOC003_Page_1.jpg

[enaid]

Re: CAPQUEST SD and CCA repsonse

Hello diaz,
A warm welcome to Beagles, I myself can not help you with your query, but someone who can will be along soon.
Enaid x

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

OK as CQ are bringing this action it is for THEM to supply the required documentation.

Now as you have commented this is indeed and non-compliant "agreement" as it lacks TWO prescribed terms.

Please remember an application CAN BE and agreement as long as it has all the correct terms present.

Anyway, you need to get this set aside WITH COSTS as you are a LIP !!!
Your local court can help you with this, give them a call.

[diaz101]

Re: CAPQUEST SD and CCA repsonse

thnaks for the reply and hi to everybody.

can somebody let me know which two prescribed terms its missing? am i correct in that its the credit limit and the cancellation terms? or is there something else that i am missing?

not sure as to what to write, but i presume the best option is to send the default notice i have seen on here and wait for the reply form capquest.

shall i also send a complaint to the FOS about Capquest's default?

thanks again for everyones help in a most dofficult time,

cheers

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

There's no credit limit statement and no repayments terms.

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.


8.3 What are the prescribed terms?

The prescribed terms specified in Sch 6 are as follows:

* amount of credit – see Q8.

* credit limit – see Q8.5
* repayments – see Q8.9.
* rate of interest – see Q8.6

Sch 6 was not amended by the 2004 Regulations.


Also check out Peter Bard's excellent thread on the subject: Agreement Enforceability - The Consumer Forums

For now get the SD set aside and worry about the other stuff later.

This thread will be useful for you : Consumer Credit Agreements - A Guide - Legal Beagles

[diaz101]

Re: CAPQUEST SD and CCA repsonse

Thaks very much for the speedy reply, your advice is greatly appreciated and for know, i can rest in the fact that the agreement is unenforceable,and at last have a bit of peace and mind.I got into the situation because of illness, so this is really beneficial to me.

I shall post an update when and if i have my SD hearing as i have sent Capquest a deafult notice letter and asked them to stop the case and remove the default of my record.

cheers everyone

[diaz101]

Re: CAPQUEST SD and CCA repsonse

Dear All,

I have now received a reply from Capquest to the CCA request that I sent.
I have uploaded the links to photobucket.
They have defended that they now have proof etc.

Whats the best course of action, as in the statement they say that they have signatures on a signed copy of the credit agreement but also on the application(statementpart1, paragraph 3) but they have not provided the HBOS agreement , only the application form. This seems odd as they say they have sent me the signed agreement but in fact have only sent me the application form.
If this is the basis of the argument, and as I understand it, the agreement/application is not valid because it does not contain all the required details, whats the best course of action for me.

What do I do next, as I feel that once again Capquest are not actually acting in a lawfull way, they have not provided proof that they own the debt etc, nor provided the me with all the paperwork.

Do I apply for the paperwork using the civil procedure rule?or do say that they have not got a enforceable credit agreement.

It would seem that they are trying to scare me into calling them before the court date so that i accept the debt.

Any help on this, and working of a letter to them would be very helpful.

Many thanks for your help


http://s599.photobucket.com/albums/tt71/simondiaz_101/?action=view&current=CapquestSetAsideReceipt.jpg

http://s599.photobucket.com/albums/tt71/simondiaz_101/?action=view&current=CapquestsetAsideSentToJudge.j pg


http://s599.photobucket.com/albums/tt71/simondiaz_101/?action=view&current=CapquestStatementPart2.jpg

http://s599.photobucket.com/albums/tt71/simondiaz_101/?action=view&current=CapqueustStatementPart1.jpg

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Well basically do they have a fully compliant agreement or not ??
Simple really.
The fact you have used this account, IN GOOD FAITH, has nothing to do with the enforceability of the alleged credit agreement !!!

If all they have is the afore mentioned application then they are royally screwed as this does NOT comply with s61 of CCA, in so far as it is lacking 2 of the 3 prescribed terms.

Also as this is a pre May 2005 document ALL of the terms MUST be within the signature document as seperate T&C embodying them is NOT acceptable, as per SI 1983/1553

A regulated agreement is not properly executed unless the document signed contains all the prescribed terms: section 61(1)(a). One of the prescribed terms is the 'amount of the credit': see the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), regulation 6 and Schedule 6, para 2. The consequence of failure to state all the prescribed terms of the agreement is that the court is precluded, by section 127(3), from enforcing the agreement. In the absence of enforcement by the court the agreement is altogether unenforceable: section 65(1).

Whole SI is attached.

Also have CQ actually proved that they can take this action ??

They should supply assignment documentation compliant with Law of Property 1925 s136(1), otherwise they are in NO position to bring this action.

DON'T be put off as they are trying to force you to with draw and take a beating.

Press on with the set aside, they wont even bother turning up for the hearing.

[diaz101]

Re: CAPQUEST SD and CCA repsonse

Thanks very much for your help curlyben, and its really appreciated, i shall let you all know how i get on.

Capquest are a bunch of wotsits as far as i can tell, and they are trying it on.

cheers

D

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Yeah, they have recently started to us SD's in this manner and it's totally out of order !!!

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Also have a read of this thread: Debt Collection Agencies Statutory Demands, a few strategies - Legal Beagles

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Just out of interest, was this SD sent via UKMail ??

[diaz101]

Re: CAPQUEST SD and CCA repsonse

Hi Curlyben, apologies for the late reply, im going to court 14th April so will keep everybody updated, as of yet Capquest have not answered my request for a correct credit agreement under disclosure of evidence.

Im pretty confidednt that i can get it thrown out on your advice that its not a enforceable credit agreement as im goign to quote the actual act etc.

If i press on with the set aside, what then, do i ask the judge to get capquest to remove the debt from my credit file etc.

How would i do this inmy letter to the court, im going to tell them all the info above and also claim LIP costs.

cheers

D

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

As CQ have ignored your CCA lead on that fact.
Don't even mention the "agreement" you have received from Halifax, unless asked.
After all it was CQ that brought this action and NOT Hailfax.

Yes, go for LIP costs, after all you have done alot of research and so forth for this.

I would try for, at least, 10 hours at normal LIP rate of £9.25 per hour.
You could always try for 15 as you have spend extra time sending them letters etc..
remember to get a nice bundle together to back up your research claims, so all letters and stuffs..

Either way there is NO way a judge can allow this clear abuse of process to continue and it should be set aside. I doubt CQ will even bother to attend.

[diaz101]

Re: CAPQUEST SD and CCA repsonse

CQ have already stated that they will not attend, and even had the cheek to say they wouldnt be going for costs!!

Thanks for your help, and i'll keep you updated,

regards