CAPQUEST SD and CCA repsonse

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Nice one.
Do you have this in writing ?!

[righty]

Re: CAPQUEST SD and CCA repsonse

I don't want to rain on your parade but it's still important YOU attend AND request wasted costs. I'm afraid it's not unknown for DCA's to try & mislead debtors in this way & as they are aware of your intention to vigorously defend their SD the last thing they want is you in court

Also IF they don't attend & you do that'll pee the Judge off big time & he/she will be only to pleased to award you costs

[diaz101]

Re: CAPQUEST SD and CCA repsonse

Thanks for the replies, i do have it in writing that they will not be attending, i myself will be going,armed with the information i have and all copies of correspondence.

The law is on my side and the request for the application to be set aside is correct.

I want to win this case.

I also have another letter from them which i will upload, it makes for interesting reading, they have the cheek to say that i have been downloading forms from the internet and im inconveniencing them, which i found most amusing.

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Hey D, I was just wondering about this case.
You are completely correct in attending no matter what they say.
Better to be sure they aren't pulling a fast one on you

[diaz101]

Re: CAPQUEST SD and CCA repsonse

I have attached the letter from Capquest as a result of my request for any outstanding documentation as i will be defending myself, which funnily enbough they did not seem to like! and i am sending the judge the below letter as my defence, any suggestions welcome.

Can i ask the judge to order capquest to remove anything from my credit file relating to his?

Dear Sir\Madame,

I wish to get the Statutory Demand set aside on the following grounds:

Capquest have failed to provide a fully compliant CCA and as such it is unenforceable. The enclosed agreement does not fully comply with the CCA 1974.

The enclosed alleged credit agreement, labelled 1 and 2 has been supplied by Capquest and this does NOT comply with s61 of CCA, in so far as it is lacking 2 of the 3 prescribed terms.

It does not contain the amount of credit or repayment terms.

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

I have included the details from the act below and I have highlighted the relevant details, and they state:

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.

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.

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).


As you can see, the alleged credit agreement does not conform and cannot be enforced by the court, I would also like to claim costs as a litigant in person.

Rate Claimed: Litigant in Person rate of £9.25 / hour



1) Time spent identifying and understanding relevant legislation.
Time spent identifying and understanding relevant case law.
Time spent preparing affidavit and skeleton argument.

20 hours £185.00

2) Time spent communicating with Respondent 3 hours £ 27.75

3) Loss of 2 days income for attending court on April 28th 2009 and for swearing affidavit on 12th December 2008 £ 307

4) Travel court x2 =34 miles @40p per mile = £13.60


Total £505.60





Notes

Before undertaking this myself I approached a solicitor to handle this. I was given an estimate of 3 to 6 hours at £250/hour to prepare the Application (£750-£1500) plus extra for attending the court.

I respectfully request that the court give consideration to awarding these costs on the indemnity basis or, in the alternative, on the standard basis as I believe, in any case, that they have been proportionately and reasonably incurred and/or are of a proportionate and reasonable amount.

In support of this request, I would also like to refer the court’s attention to the authority of the High Court in the case of:-

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

Any help on the reply would be greatly appreciated but i think ive got it covered,

[righty]

Re: CAPQUEST SD and CCA repsonse

Remove or modify any remarks which imply the court cannot do something (even if they can't) Judges hate being told by a litigant what they can't do

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Also you need to edit this part:

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

to

8.3 What are the prescribed terms?

The prescribed terms specified in Sch 6 are as follows:

* credit limit
* repayments
* rate of interest

[diaz101]

Re: CAPQUEST SD and CCA repsonse

cheers chaps, i thought that might be the case,i'll let you know how i get on

[diaz101]

I WON!!! against capquest

Hi Everyone, a quick update. I WON!!!! thanks to everyone on here especially Curlyben, you are an absolute star! I did everything that was suggested and got my set aside granted, judge wasnt impressed they didnt turn up, and also that they didnt even provide proof they owned the debt, let alone the CCA stuff, so i won and i got costs awarded of £400, so thank you evrybody. Is there anyway i can donate some £ to the site??? Also, now i have won this, what do i have to do to get this removed from my credit file??? Cheers chaps, i fought Capquest and won, couldnt have done it without everyones help

[righty]

Re: CAPQUEST SD and CCA repsonse

Excellent. Now if the CRA won't remove the adverse data you can threaten to sue them for defamation & mean it

[WendyB]

Re: CAPQUEST SD and CCA repsonse

Great Result. Congratulations. And you got costs too, well done. beagles are doing OK with SDs the last couple of weeks lol.

I think there is a donate button on the homepage somewhere.....

[Paule]

Re: CAPQUEST SD and CCA repsonse

Congratulations, I hope you feel great now

It just goes to show that if you stand your ground and fight back you CAN win

PKea

The doante button is at the top of the page or
You could upgrade to VIP membership and get the extra benefits as an alternative to donating

[Curlyben]

Re: CAPQUEST SD and CCA repsonse

Happy Dance time again..



Nicce one bud..

[Amy]

Re: CAPQUEST SD and CCA repsonse

Excellent, I'm really pleased for you.

Curly, this is getting like Groundhog Day now Mister!

[enaid]

Re: CAPQUEST SD and CCA repsonse

Fabulous news, well done to all concerned.
Enaid xx