Capquest refusing subject access request

[rachelsmith]

Hi, I'm new here and in a bit of a pickle so please bear with me!

I had a letter from Capquest in August last year saying they had purchased 2 alleged debts from Lloyds. One is a current ac/overdraft and the other a credit card. They threatened legal action unless I paid them.

I immediately wrote back to them requesting they send me all of the information they held on me and asking them for a copy of credit agreements etc (mainly because I believe these are both statute-barred). They ignored my letters and took Court proceedings and obtained a judgment. I believe they ignored my letters on purpose so that they could obtain judgment without sending me the credit agreement as I don't believe it exists.

Then I received a letter from HL Legal acting for Capquest stating that they have judgment, have registered an interim charging order against my property and were looking to enforce it. I wrote to them asking them to get their clients to send me the information I had asked for and despite receiving 2 recorded delivery letters from me they have ignored them.

I continued to write recorded letters to Capquest in the hope that someone would answer me and also stating I would take this to the Financial Ombudsman and they sent me a letter back about a month ago saying I needed to pay £10 for the information. I sent them a £10 postal order and have now received a letter stating the following:

1) The Ombudsman won't look into the complaint as there is now a judgment so basically tough luck.
2) As they have a judgment they are no longer required to give me any information regarding the accounts and won't send me a copy of the signed agreement. They state that as there is a charging order and no payment is technically now due I am not entitled to a copy of the signed agreement.
3) It's my responsibility to make sure they got my letters (the first 3 were sent normal post, all subsequent were sent recorded) and had they received them they would not have gone for judgment (which I don't believe for a second)

And they kept the £10 despite me stating quite clearly in my correspondence that this was for the information only and NOT to be applied to either of the accounts.

So, I don't know what to do next. I can't prove the account is statute barred because they're refusing to send me a copy of the signed credit agreement (I'm pretty sure there isn't one). And I now have a judgment that I think was incorrectly obtained but can't prove it wasn't.

Can anyone make any suggestions? Is it worth me trying to get the Financial Ombudsman to look at how they dealt with me from the beginning? Is it worth complaining to the Solicitors Regulation Authority about HL Solicitors ignoring my letters? And how do I get a copy of the signed agreements to prove these accounts are statute-barred?

Sorry it's so long-winded but thanks in advance for any help.

Rachel

[enquirer]

Re: Capquest refusing subject access request

They cannot refuse a SAR unless it falls into one of the exemptions. As it doesn't, it merits a complaint direct to ICO (Office of the Information Commissioner). It's quite simple and you can do it online.

Don't forget to mention that they kept the £10.

[FlamingParrot]

Re: Capquest refusing subject access request

Hi, I'm new here and in a bit of a pickle so please bear with me!

Hi and welcome!
We bark loudly but don't bite! :beagle:

I had a letter from Capquest in August last year saying they had purchased 2 alleged debts from Lloyds. One is a current ac/overdraft and the other a credit card. They threatened legal action unless I paid them.

I immediately wrote back to them requesting they send me all of the information they held on me and asking them for a copy of credit agreements etc (mainly because I believe these are both statute-barred). They ignored my letters and took Court proceedings and obtained a judgment. I believe they ignored my letters on purpose so that they could obtain judgment without sending me the credit agreement as I don't believe it exists.

Did you attempt to defend the claim? If you thought there was no agreement or the debt was statute barred, you should have submitted a defence stating those facts.

Then I received a letter from HL Legal acting for Capquest stating that they have judgment, have registered an interim charging order against my property and were looking to enforce it. I wrote to them asking them to get their clients to send me the information I had asked for and despite receiving 2 recorded delivery letters from me they have ignored them.

By 'enforcing', presumably they mean recording a final CO. There's normally a court hearing before the order is made final. Have you gone through this yet? :juge:

I continued to write recorded letters to Capquest in the hope that someone would answer me and also stating I would take this to the Financial Ombudsman and they sent me a letter back about a month ago saying I needed to pay £10 for the information. I sent them a £10 postal order and have now received a letter stating the following:

1) The Ombudsman won't look into the complaint as there is now a judgment so basically tough luck.
2) As they have a judgment they are no longer required to give me any information regarding the accounts and won't send me a copy of the signed agreement. They state that as there is a charging order and no payment is technically now due I am not entitled to a copy of the signed agreement.

The duty to provide a copy of the agreement ends once judgment is obtained, since the judgment supersedes any agreement there may have been.

3) It's my responsibility to make sure they got my letters (the first 3 were sent normal post, all subsequent were sent recorded) and had they received them they would not have gone for judgment (which I don't believe for a second)

Once a claim is issued, you'd need to submit a defence, this is in addition to any correspondence sent to the claimant. If you sent a CCA request and didn't get a response, then you'd have used this in your defence.

[FlamingParrot]

Re: Capquest refusing subject access request

So, I don't know what to do next. I can't prove the account is statute barred because they're refusing to send me a copy of the signed credit agreement (I'm pretty sure there isn't one).

The copy of the agreement wouldn't show whether an account is statute barred or not, it will only have the date you opened the account, not when you last made a payment.

And I now have a judgment that I think was incorrectly obtained but can't prove it wasn't.

It is possible to apply to have a judgment set aside, but it may be difficult if you did receive the court papers and did not submit a defence, unless you can show there was a very good reason, such as having been away for a long period of time, ill, etc. See this for reference: https://www.nationaldebtline.org/EW/...t/Default.aspx

Can anyone make any suggestions? Is it worth me trying to get the Financial Ombudsman to look at how they dealt with me from the beginning? Is it worth complaining to the Solicitors Regulation Authority about HL Solicitors ignoring my letters?

None of the above authorities have the power to set aside a judgment, only a court could do that, see above. :juge:

And how do I get a copy of the signed agreements to prove these accounts are statute-barred?

As above, the agreements wouldn't show whether they were SBd or not at the time proceedings were issued.

[FlamingParrot]

Re: Capquest refusing subject access request

And they kept the £10 despite me stating quite clearly in my correspondence that this was for the information only and NOT to be applied to either of the accounts.

So, I don't know what to do next. I can't prove the account is statute barred because they're refusing to send me a copy of the signed credit agreement (I'm pretty sure there isn't one). And I now have a judgment that I think was incorrectly obtained but can't prove it wasn't.

They cannot refuse a SAR unless it falls into one of the exemptions. As it doesn't, it merits a complaint direct to ICO (Office of the Information Commissioner). It's quite simple and you can do it online.

Don't forget to mention that they kept the £10.

While they no longer have a duty to respond to a CCA request once judgment has been obtained, they still have to comply with a SAR regardless, however, most banks only send data for the past 6 years.

In case of non-compliance, the first step is to write to the company to complain about the non-compliance. This has to be done prior to complaining to the ICO:

Dear Sirs

Non response to a subject access request

I am writing further to my letter of [xx/xx/xxxx] in which I made a subject access request, because I have not received any response from your organisation.

As the statutory time limit for responding to my subject access request (40 days) has now expired, I would be grateful if you could provide a response as soon as possible.

If I do not receive a response from your organisation within 14 days, I will submit a ‘request for assessment’ to the Information Commissioner’s Office (ICO).

You can find advice on the ICO’s website on how to deal with a subject access request ico.org.uk/sar and information on their powers and the action they can take ico.org.uk/action or call them on 0303 123 1113.

Yours faithfully

[rachelsmith]

Re: Capquest refusing subject access request

Hi,

Thanks for your help. There are a couple of things I don't quite understand though.

"The duty to provide a copy of the agreement ends once judgment is obtained, since the judgment supersedes any agreement there may have been."

Do they not have to provide a copy of a signed agreement to the Court when they issue the claim in the first place? If they don't have a signed agreement (which I believe they don't) hasn't the judgment been obtained incorrectly?

"If you thought there was no agreement or the debt was statute barred, you should have submitted a defence stating those facts."

I didn't submit a defence, I wasn't sure if I had one which is why I asked for the documentation so I could see whether the accounts were statute barred as I thought the were. I suffer from depression and this is very difficult for me to deal with, but I presumed (clearly naïvely) that Capquest would send me the info I asked for and I could stop these proceedings but they just went ahead and ignored my letters, presumably so they no longer have to provide me with a copy of the credit agreement because they don't have one. One of the accounts was opened 23 years ago and I'm fairly certain there will be no signed agreement for that one at least.

"By 'enforcing', presumably they mean recording a final CO. There's normally a court hearing before the order is made final. Have you gone through this yet?"

I have a hearing set for 2nd June but there's no way I can go through that, I'm not up to it and find it all far too stressful for my mental health.

"It is possible to apply to have a judgment set aside, but it may be difficult if you did receive the court papers and did not submit a defence, unless you can show there was a very good reason, such as having been away for a long period of time, ill, etc."

If the account is statute barred how could the judgment be said to have been made correctly? Surely if I ask the Court to look into the matter the onus should be on Capquest to prove that the account is not statute barred otherwise the judgment has been obtained illegally? And how can I provide that information to the Court if Capquest are refusing to send it to me?

So even if there are no signed credit agreements, now the judgment has been made I am liable for these debts? How is that legal? Especially if the last transactions on the accounts took place over 6 years ago? Surely this can't be right?

[FlamingParrot]

Re: Capquest refusing subject access request

"The duty to provide a copy of the agreement ends once judgment is obtained, since the judgment supersedes any agreement there may have been."

Do they not have to provide a copy of a signed agreement to the Court when they issue the claim in the first place? If they don't have a signed agreement (which I believe they don't) hasn't the judgment been obtained incorrectly?

When a claim is issued via the Northampton Bulk Centre, they don't have to attach the documents to the claim. You are entitled to request the documents via the CPR upon receipt of the claim.

"If you thought there was no agreement or the debt was statute barred, you should have submitted a defence stating those facts."

I didn't submit a defence, I wasn't sure if I had one which is why I asked for the documentation so I could see whether the accounts were statute barred as I thought the were. I suffer from depression and this is very difficult for me to deal with, but I presumed (clearly naïvely) that Capquest would send me the info I asked for and I could stop these proceedings but they just went ahead and ignored my letters,

The reason they were awarded default judgment was because you did not submit a defence. Once proceedings are issued, there's a process that has to be followed, i.e. you acknowledge service of the claim, you request documents, if they are not supplied you either submit a holding defence or an unless order, then the claim could get stayed or struck out. If you believe a debt to be SBd you can just submit a SBd defence, leaving it up to the claimant to prove otherwise.

presumably so they no longer have to provide me with a copy of the credit agreement because they don't have one.

The judgment supersedes the agreement.

One of the accounts was opened 23 years ago and I'm fairly certain there will be no signed agreement for that one at least.

Probably not.

"By 'enforcing', presumably they mean recording a final CO. There's normally a court hearing before the order is made final. Have you gone through this yet?"

I have a hearing set for 2nd June but there's no way I can go through that, I'm not up to it and find it all far too stressful for my mental health.

Sadly, if you don't attend the hearing and put forward your arguments, the CO will be made final. See this for reference: https://www.nationaldebtline.org/EW/...s/Page-03.aspx

You still have nearly a month before the CO hearing, during which time you could apply to have the judgment set aside, see below. :thumb:

[FlamingParrot]

Re: Capquest refusing subject access request

"It is possible to apply to have a judgment set aside, but it may be difficult if you did receive the court papers and did not submit a defence, unless you can show there was a very good reason, such as having been away for a long period of time, ill, etc."

If the account is statute barred how could the judgment be said to have been made correctly? Surely if I ask the Court to look into the matter the onus should be on Capquest to prove that the account is not statute barred otherwise the judgment has been obtained illegally? And how can I provide that information to the Court if Capquest are refusing to send it to me?

You said it yourself! The onus should be on them to prove it. :thumb: There are two basic requirements for a successful set aside application:

1. A valid reason not to have responded to the claim and/or submitted a defence. If you have a history of suffering from depression or mental health issues, this could be considered a valid argument for failing to respond, especially if you were suffering from a bout of depression at the time the claim was issued, or you can show you were in no fit state to deal with the claim at the time.
2. A viable defence. If you believe the debt to have been already SBd at the time the claim was issued, that sounds like the best defence. :grin:

So even if there are no signed credit agreements, now the judgment has been made I am liable for these debts? How is that legal? Especially if the last transactions on the accounts took place over 6 years ago? Surely this can't be right?

See above with regards to applying for set aside. When it comes to a viable defence, statute barred is an absolute defence and much stronger than any argument regarding agreements. :thumb:

To apply for set aside, you'll need an N244 form https://www.nationaldebtline.org/EW/...t/Page-05.aspx The form can be downloaded here: N244 application form

In certain cases, you could get the court fee waived: https://www.nationaldebtline.org/EW/...spx#quicklink1

Form ex160a provides full details. It's worth looking into remission since the application fee is now £155.

[rachelsmith]

Re: Capquest refusing subject access request

Capquest finally sent me some documentation but all it is is copies of letters they've sent me, copies of letters I've sent them (the only ones they claim to have received!) and notes from their computer system. No statements of account etc like I asked for, so that was a pretty pointless waste of £10!

I really can't afford the £155 fee to set-aside the judgment as I don't work and this whole thing is really affecting my health. Is there a chance if I send a letter explaining everything to the hearing, the judge might look favourably on it and refuse the final charging order or cancel the judgment altogether? Or does it have to be a formal application?

[FlamingParrot]

Re: Capquest refusing subject access request

Capquest finally sent me some documentation but all it is is copies of letters they've sent me, copies of letters I've sent them (the only ones they claim to have received!) and notes from their computer system. No statements of account etc like I asked for, so that was a pretty pointless waste of £10!

Debt purchasers don't usually hold all that historical account data, that would be with the original lender. Can you refresh my memory as to why you sent the SAR to cr@pquest? Was it because they'd been applying their own charges?

I really can't afford the £155 fee to set-aside the judgment as I don't work and this whole thing is really affecting my health.

If you don't work, you are very likely to qualify for fee remission. Form ex160a provides full details. :thumb:

Is there a chance if I send a letter explaining everything to the hearing, the judge might look favourably on it and refuse the final charging order or cancel the judgment altogether? Or does it have to be a formal application?

There are two separate parts here, each one has to be dealt with differently:

• The judgment: a judge can't just cancel a judgment, there has to be a formal application to have a judgment set aside.
• The charging order: it's up to the court to decide whether to make it final or not, for this purpose, your arguments can be provided in a letter sent to the creditor and the court, at least 7 days prior to the hearing.

If you succeeded in getting the judgment set aside there would be no basis for a charging order. If you think you have good grounds for set aside as per my post 8 above, it may be worth looking at this option in the first instance, especially if you are able to get the fee waived. :grin:

[FlamingParrot]

Re: Capquest refusing subject access request

If you don't get the judgment set aside, you can still put forward arguments against making the charging order final. You my want to look at this post I made yesterday:

How much is the amount of the judgment? There are arguments you can put forward but some will depend on the size of the debt.

Arguments you could use are:

• If your property is in negative equity, there would be no point in making a CO
• If your share in the equity is less than the amount you owe, you could argue there's no point in making a CO
• If you have other creditors, it could be argued a CO would give this creditor an unfair advantage, and that it could upset any arrangements you have with your other creditors
• You have kept up the payments ordered by the court so far (provided you have done so)
• There are other ways this judgment could be enforced, for example, via an attachment of earnings (if applicable, only if you are employed)
• If you or someone else living at the property is seriously ill or disabled

In that case the amount of the judgment was rather large, there are other points that can be used if the debt is relatively small. In reality, it can be difficult to convince the court not to make the order final.

[Kafka]

Re: Capquest refusing subject access request

I think FP has covered all the points here in detail, but a couple of extra ones:

1) You mention 2 accounts here, but only the credit card would have an agreement because the OD is a different issue not covered by the CCA.

2) I think that the health issue is a major point here if you do appeal. Do you have a support worker or some professional who can verify your situation? I think that this would pack a much harder punch than a letter from you.

[rachelsmith]

Re: Capquest refusing subject access request

Thanks guys. Just looked at the fee issue and just noticed it says I have to include my husbands' income aswell. Can't tell whether that's for joint debts or even if the debt is in my sole name though. Anyone have any clue on this? And as it's technically two debts and two judgments will I really have to find £310 to have them set aside???