Advice on debt recovery greatly apprecciated

GeorgeUK

Here's some legislation that may be relevent. I had put this up in another post previously.

Under s59 of the CCA74

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.
(2) Regulations may exclude from the operation of subsection (1) agreements such as are described in the regulations.

As the application form is a prospective agreement, then it should be void as it does not contain all the prescribed terms.

61.—(1) A regulated agreement is not properly executed unless
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

If all the prescribed terms are not present then the debt is unexecuted.

s127(3) of the Act

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

If the document does not have signatures of both creditor and debtor and all the required prescribed terms, then the claim should not be enforced .

Why i am asking whether a noticce of default was issued or not is because court action cannot be taken if one has not been issued. No idea how to check if a default has been made though. If one was issued in the last 6 years it should appear on your credit file but not sure how to see if there was one more than 6 years ago.

sarah03_2

thanks georgeuk, will check through paper work but nothing shows on credit file, will let you know what happens on thursday
x

sarah03_2

Ok so to update, oh did not have to attend court today as capquest sent a letter to court (a copy to oh) stating that they did not have the relevant legal paper work and they ask that the stat demand be set-aside with no costs! spoke with national debt helpline who adv we should be proud of this result but can't help but feel slighyly knarked as were paying capquest money everymonth...
I would just like to say a big thank you to everyone that has given us advice and lets hope this is the end of it - knowing capquest it probally won't be......
xxx

rog2

sarah03 wrote: »

spoke with national debt helpline who adv we should be proud of this result but can't help but feel slighyly knarked as were paying capquest money everymonth...

But at least you won't be paying it any more, sarah - great result. :T :T

Btw - it is possible, although in many cases it is not considered to be worth the hassle, to demand that CRAPQUEST refund all monies that you have paid against this unenforceable 'debt'.