Capquest Proposed Direction help please?

[siferetto]

Quick background;

1. I've recently had a CCJ (Old Lloyds or HBOS account not sure which) set aside with Capquest (sent to old address) but they refiled the claim at new address.
2. I sent CCA request and CPR 34.14 request
3. Agreed a 28 day extension for Capquest to send the docs
4. Filed an embarrassed defence 2 days before deadline as NOTHING received
5. Received Allocation papers from Court saying small claims seemed suitable.
6. I filed Allocation form stating case was not suitable for any track as the claimant was attempting enforcement in default of s.77/78 stating CCA info which prevents enforcement whilst in default. I also stated that if a hearing had to take place then Fast Track would be most suitable to protect my CPR 34.14 rights and to claim costs for a claim being made in default of s77/78.

That was about 10 days ago and I've heard nothing back from the Court yet, but (again sent to my old address) Capquest have sent me a copy of a proposed Directions order filed with the Court asking for the claim to be stayed for 1 month to enable parties to attempt settlement.

It further adds that (briefly) by the extension date that, either,
1. Claimant notifies whole claim settled
2. Claimant or defendant must write for a further extension of the stay period
3.Claimant to file proposed Directions for future management of claim

Can I politely just ask those in the know to let me know why Capquest has probably done this or whether its a standard tactic to buy more time (given they havent provide any docs?). They originally filed 11 months ago so have had plenty of time to find something.

Thanks in advance for any replies!

[Amethyst]

Re: Capquest Proposed Direction help please?

Yes it is quite standard although sending it to your old address is worth a letter to them.

This will just be a copy of their draft directions they've submitted to the court so you should now wait for the court to issue the directions it decides is appropriate.

I'm not keen on your argument to not allocate the claim to any track - in order for the claim to progress and directions to be given it needs to be allocated to a track. If the claim is under £10k then it should be allocated to small claims. If you wanted to protect the CPR 31.14 request you could have applied for an order to the court pre allocation. Your defence presumably stated you were unable to plead fully as you had received no paperwork and the CCA request had not been complied with.

Is it a current account overdraft debt ? or a loan / credit card ? (it isn't clear from your post and the CCA request is redundant if it is a bank account )

[siferetto]

Re: Capquest Proposed Direction help please?

Hi Amethyst,

It's definetely a credit card but I genuinelly don't know which one as the POC only says Lloyds Banking group? Yes my defence stated I couldn't file a proper defence as the claimant had failed to provide any documents to support its claim and I requested a strike out based on it's failure to comly with CPR 34.14. But I'm just a little unsure why they filed this before the court responded to the allocation questionnaires?

I do understand you may don't agree with the "no track" method but from the other cases I've followed; once it's allocated to small track the defendant (by and large) get's stuffed as CPR 34.14 doesn't apply. I've just taken the view I have nothing to lose by suggesting no track or fast track if a hearing has to take place as Capquest can't produce anything?

[siferetto]

Re: Capquest Proposed Direction help please?

I also forgot to add that on the Directions Questionnaire they supplied a copy of, they agree to the Small Claims Mediation Service and they DON'T agree that the small claims is the most appropriate (but don't state why not in the box underneath?)

[siferetto]

Re: Capquest Proposed Direction help please?

Can anyone advise of how to strike the above claim out with the Court, please?

It appears Capquest missed the Directions Questionaire deadline and were sent a notice stating there claim would be struck out if they didn't reply by the 22nd of September. They, subsequently, sent me a copy of their Directions Questionaire and a letter stating they had applied for a stay until the 22nd of September to address my CCA request?

They have still not supplied a CCA response but I'm assuming this just leaves the claim in a "stayed" position. Therefore, I now want to strike out the claim as they have not complied with, either, the CCA request of the CPR 34.14 request.

Any help gratefully received!

[siferetto]

Re: Capquest Proposed Direction help please?

I'm not keen on your argument to not allocate the claim to any track - in order for the claim to progress and directions to be given it needs to be allocated to a track. If the claim is under £10k then it should be allocated to small claims. If you wanted to protect the CPR 31.14 request you could have applied for an order to the court pre allocation. )

Just an update on this claim and what was said above. The claim is now in the process of being struck out after the Court DIDN'T allocate the claim to any track after my defence sent. The Court gave two attempts, with 28 day stays, to Capquest to, either, attempt to settle the claim outside Court or supply the documents requested to proceed.

I know Amethyst does fine work on here but, to me, agreeing to a small claims track would have been suicidal as it gives the Claimant the upper hand as CPR 34.14 goes out of the window. It's also not in the defendants interests for the claim to progress; it needs holding up at every stage to deter the Claimant from proceeding.

Posting just in case anyone else in same position.

[nemesis45]

Re: Capquest Proposed Direction help please?

I also forgot to add that on the Directions Questionnaire they supplied a copy of, they agree to the Small Claims Mediation Service and they DON'T agree that the small claims is the most appropriate (but don't state why not in the box underneath?)

What were you expecting from CPR 31.14, which provides for only documents referred to in the POC.
Did you make a CCA request to Capquest, which must be complied with?

[siferetto]

Re: Capquest Proposed Direction help please?

What were you expecting from CPR 31.14, which provides for only documents referred to in the POC.
Did you make a CCA request to Capquest, which must be complied with?

I expected a copy of the agreement they mentioned in the POC's along with the Default and assignment notices mentioned. CCA request sent in November 2013 and never received.

My point is backed up by still reading threads where posters haven't had the CCA request complied with and still LOSE in Court as DJ's are still ruling in favour of a Claimaint in dispute?

[nemesis45]

Re: Capquest Proposed Direction help please?

I expected a copy of the agreement they mentioned in the POC's along with the Default and assignment notices mentioned. CCA request sent in November 2013 and never received.

My point is backed up by still reading threads where posters haven't had the CCA request complied with and still LOSE in Court as DJ's are still ruling in favour of a Claimaint in dispute?

I presume this claim was via the Northampton CCMCC which means that documents cannot be attach to the claim and CPR1 14 is not relevant?
Default Notices are generic and not routinely archived as hard copy all that is required is for a annotation on the creditors files that a DN was sent on a specified date.
A SAR to the original creditor would have produced data other than the agreement.
I would send a CCA request to Capquest now by signed for post ( do not use PO Box number in the address) check delivery date.

[siferetto]

Re: Capquest Proposed Direction help please?

What makes you think CPR 34.14 isn't relevant just because the claim is issued through Northampton? And I think your Default Notice info is suspect, too, especially if it's mentioned in the POC.

CCA request has been acknowledged, they just haven't complied.

[FlamingParrot]

Re: Capquest Proposed Direction help please?

I presume this claim was via the Northampton CCMCC which means that documents cannot be attach to the claim and CPR1 14 is not relevant?
Default Notices are generic and not routinely archived as hard copy all that is required is for a annotation on the creditors files that a DN was sent on a specified date.
A SAR to the original creditor would have produced data other than the agreement.
I would send a CCA request to Capquest now by signed for post ( do not use PO Box number in the address) check delivery date.

What makes you think CPR 34.14 isn't relevant just because the claim is issued through Northampton? And I think your Default Notice info is suspect, too, especially if it's mentioned in the POC.

CCA request has been acknowledged, they just haven't complied.

First of all, I assume you guys are referring to CPR 31.14 since 34.14 refers to the Fees and expenses of examiner of the court: http://www.justice.gov.uk/courts/pro...s/part34#34.14 and there is no such thing as 1.14. :noidea:

There seems to be a bit of confusion here, when a claim is issued through the Northampton Bulk Centre there is no requirement to attach the documents to the particulars of claim, that doesn't mean there is no requirement to produce documents to back up the claimant's right to recover the money. You can send a CPR 31.14 request for a claim issued through the bulk centre, the argument is that Part 31 doesn't apply to the small claims track, however, a claim is not allocated until you have submitted a defence, so technically you can send a request under CPR31.14 for a claim below £10k because it hasn't yet been allocated, however, once you submit a defence and reach the stage where the claim is allocated, they can easily say Part 31 does not apply. That's why some people choose to submit an unless order rather than submitting a defence without documents.

[nemesis45]

Re: Capquest Proposed Direction help please?

What makes you think CPR 34.14 isn't relevant just because the claim is issued through Northampton? And I think your Default Notice info is suspect, too, especially if it's mentioned in the POC.

CCA request has been acknowledged, they just haven't complied.

A DN can be mentioned in the POC and the creditor/DCA only has to state that a DN was sent on a specific date, nothing suspect about it!
You May be supplied with a " generic copy" ( No specific detail) being said to " what you would have received)

My apologies for the typo I was referring to 31.14.

Capquest have not complied with a CCA request? Has this defect been challenged?

[siferetto]

Re: Capquest Proposed Direction help please?

Hi Flaming Parrott, yes I was referring to CPR31.14 (thankfully I got it right in the defence sent!) and I do understand an "unless order" is a better way to deal with this up front, so to speak.

But (and correct me if I am wrong, here) does not CPR31.14 still apply to Fast Track claims? My point on this was, however, it was abundantly clear Capquest had no docs (they first submiited the claim in November 2013 and still haven't produced anything) so my defence was I didnt agree to any track (because of no docs) but if one HAD to be allocated then I wanted Fast Track to ensure my CPR 31.14 rights were protected. Capquest would have also been left open to paying costs on this which is why I think they sent back they beleived mediation was best rather than small claims? I would have, also, been a dead duck in the water if I'd agreed to small claims as CPR is out the window and, as we continually see from posters, some DJ's are still ignoring CCA law and still ruling for claimants if default of s.77/78. All I know is that no track was allocated by the Court and, instead, Capquest were told to try and attempt settlement outside Court or pay for the claim to be stayed further (which they stopped doing?)

Nemesis45, if the document is mentioned in the POC's then you are entitled to view the document under CPR31.14 to check the dates sent etc.. It may well be that, if a claim is made against you, a SAR will have been made and the document received in the data sent. With regard to what you say about the CCA request, as I make the point to FP; DJ's won't always factor in this default when hearing a claim. And notifying the Court that the Claimant is in default in your defence, and therefore shouldn't be attempting enforcement, certainly doesn't seem to have any effect?

[nemesis45]

Re: Capquest Proposed Direction help please?

Hi Flaming Parrott, yes I was referring to CPR31.14 (thankfully I got it right in the defence sent!) and I do understand an "unless order" is a better way to deal with this up front, so to speak.

But (and correct me if I am wrong, here) does not CPR31.14 still apply to Fast Track claims? My point on this was, however, it was abundantly clear Capquest had no docs (they first submiited the claim in November 2013 and still haven't produced anything) so my defence was I didnt agree to any track (because of no docs) but if one HAD to be allocated then I wanted Fast Track to ensure my CPR 31.14 rights were protected. Capquest would have also been left open to paying costs on this which is why I think they sent back they beleived mediation was best rather than small claims? I would have, also, been a dead duck in the water if I'd agreed to small claims as CPR is out the window and, as we continually see from posters, some DJ's are still ignoring CCA law and still ruling for claimants if default of s.77/78. All I know is that no track was allocated by the Court and, instead, Capquest were told to try and attempt settlement outside Court or pay for the claim to be stayed further (which they stopped doing?)

Nemesis45, if the document is mentioned in the POC's then you are entitled to view the document under CPR31.14 to check the dates sent etc.. It may well be that, if a claim is made against you, a SAR will have been made and the document received in the data sent. With regard to what you say about the CCA request, as I make the point to FP; DJ's won't always factor in this default when hearing a claim. And notifying the Court that the Claimant is in default in your defence, and therefore shouldn't be attempting enforcement, certainly doesn't seem to have any effect?

Each case in English Civil Law is different, Judges have to decide cases on the balance of probabilities not beyond reasonable doubt as in criminal law, hence the acceptance of " reconstituted " agreements being produced in answer to CCA request and with evidence of usage or a credit facility a judge decides that in the " balance of probabilities" a liability subsists and a judgement is made enforcing the debt.

It makes no odds that a DN is mentioned in the POC the simple fact is that it is a generic document which the creditor is not required to archive, as said you may get a blank notice as evidence of what you would have received and the date that the creditor recorded the action.

It should be noted that a judge can an they quite often do order/allow the issue of a new/compliant DN is one is defective.

[siferetto]

Re: Capquest Proposed Direction help please?

If a re-constituted agreement is provided, then the balance of probability can be argued (although that won't be good enough for a CPR 31.14 request.)

But not complying with a CCA request isn't up for a "probability" argument; if one hasn't been provided CCA 1974 law says the Claimant can't use enforcement.