Statutory Demand from Capquest - Advice needed

[Curlyben]

Re: Statutory Demand from Capquest - Advice needed

Have a read through this as it should be very useful: Please Can Someone Help With Annulment of my Bankruptcy - Legal Beagles Consumer Forum

[umgeni]

Re: Statutory Demand from Capquest - Advice needed

So from what I can see I can request it to be set aside on:
1 - Incorrect serving procedure
2 - Extra interest charged

Anything else? I hope you can understand that this is all new to me and therefore on an very steep learning curve. I could really do with some help or pointers on how to deal with this.

Thanks!

[Curlyben]

Re: Statutory Demand from Capquest - Advice needed

Assignment, ie you have NEVER been notified about the absolute assignment of this debt from CITI to CQ.
Also your CCA request is still outstanding.

The assignment is extremely important, without ABSOLUTE assignment CQ CANNOT take this action !!

[umgeni]

Re: Statutory Demand from Capquest - Advice needed

I have received a letter from CQ today saying they have requested the information from the OC for my CCA request and my account has been put on hold for 28 days.

Am I right in thinking that this does not 'stop the clock' for my 12+2 day CCA request time limit?

[Curlyben]

Re: Statutory Demand from Capquest - Advice needed

Right then perfect for the set aside as they cannot supply within the required time limits.

[umgeni]

Re: Statutory Demand from Capquest - Advice needed

Hi,

Well today the 12+2 working day limit ran out for my CCA request and I haven't heard anything, so time to get to action.

So to summarise, my reasons for setting aside this SD is:

1 - Not notified of assignment of debt from Citi to CQ
2 - Extra interest charged
3 - Incorrect serving procedure (1st class post, no previous attempts in person to serve)
4 - No DDI number for person to contact
5 - CCA request not received within specified time limit

Is there anything else?

I want to get this going asap, I'm a bit unsure how to phrase this on the affidavit, could anyone point me in the direction of similar cases and/or template phrases?

Thanks for your help!

[Caspar]

Re: Statutory Demand from Capquest - Advice needed

Looks like good work to me umgeni - well done! Wait till Curly or someone equivalent comes along just to be sure though. I've never dealt with one of these!

[umgeni]

Re: Statutory Demand from Capquest - Advice needed

Few more questions (surprise surprise!)

I have found this on the CAG website which will applies to 2 and 5 points:

(1) Do not admit the debt because the debt is in dispute.

The creditor has defaulted under section 78 of the Consumer Credit Act 1974 for failing to provide a copy of the alleged agreement on request within the prescribed period. The prescribed period as stated in SI 1983/1569 Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 is 12 working days. Under the provisions of s78 (6), the creditor is not entitled to enforce the alleged agreement while this default continues.

My request under s78 of the Consumer Credit Act 1974 was sent to Allied International Credit (UK) Limited, the debt collection agency who claim to be dealing with the alleged agreement and have raised the statutory demand. This request was received and signed for on the xx xxxx 2007. At this present date (xx xxxx 2007), Allied International Credit (UK) Limited have had 13 working days to comply with the request made, and are therefore in default as stated above.

Further, I believe that the amount of £****.** referred to in the statutory demand includes a substantial sum of unlawful penalty charges. Allied International Credit (UK) Limited have not provided further information regarding the charges they have added to the account despite my requests by telephone, and still have not provided a statement of account (as requested under s78 CCA 1974).

So I think that will cover those two points not sure how to word the other points?

One other thing, the 18 day period to apply for the set aside is now over, as I was waiting for the CCA to be returned. Do I just go ahead as before or wait until CQ send something back - as they said, my account is on hold for 28 days?

[umgeni]

Re: Statutory Demand from Capquest - Advice needed

Anyone have an idea where CurlyBen is? I've been hoping he could help out but looks like he might of disappeared?!

[WendyB]

Re: Statutory Demand from Capquest - Advice needed

Not to be the bearer of bad news, but the 18 day time limit is very important. I'm not sure there is anything that you can do now. I'll see if I can get someone to drop in and advise you further.

[Curlyben]

Re: Statutory Demand from Capquest - Advice needed

Get this information to the court TOMORROW.
You MUST get the SD set aside otherwise CQ CAN carry this threat though.
getting it set aside stops this action in its tracks.

You have all the information you need as well as confirmation from CQ that they will hold action.

[umgeni]

Re: Statutory Demand from Capquest - Advice needed

Get this information to the court TOMORROW.
You MUST get the SD set aside otherwise CQ CAN carry this threat though.
getting it set aside stops this action in its tracks.

You have all the information you need as well as confirmation from CQ that they will hold action.

Ok Thanks for that, I'll get it in tomorrow.

[Curlyben]

Re: Statutory Demand from Capquest - Advice needed

Overall this is a serious abuse of process as SD's should NOT be used for unsecured CCA regulated debts of this kind.

[umgeni]

Re: Statutory Demand from Capquest - Advice needed

I have now completed my Set Aside forms, 6.5 is attached.

I haven't mentioned about not having a DDI for the contact name given, nor have I mentioned that it is abuse of the SD system to use it for unsecured debts, should I add these?

[Curlyben]

Re: Statutory Demand from Capquest - Advice needed

FOr the assignment you need to reference Law of Property 1925 s136

Legal assignments of things in action.- (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

(c) the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

It must be an absolute assignment for CQ to be the lawful owners of the debt and to be able to take this action.

LoP s196(4) deals with service of assignment notices:

Regulations respecting notices

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.