Hi,

I have received a County Court claim form from H Cohen solicitors on behalf of HPH2 chasing an old Barclaycard debt that they have purchased.

I have been taking advice from a respected friend of mine,

but having spent 3 days reading the forums of this and the other two principle sites,

I now know that I could do with some help and advice,

and would really appreciate any that could be offered.

A short background summary.

I liquidated my businesses in 2013 after the recession left us with financial difficulties,

I (stupidly) hung on fighting tooth and nail to the bitter end to save them with everything collapsing around me in the belief that I could get through,........etc etc.

Ultimately this left me without income, maxed credit cards, personal guarantees, mortgage arrears, you name it!

Now onto the issue.

I entered into an agreement with the credit card's DCA and started paying a small but unaffordable monthly instalment.

I was advised to stop paying them and concentrate on important matters.

I have therefore ignored the hundreds of letters and phone calls.

Crucially, the debt was sold months after the payments stopped. And I have had no contact at all with HPH2 or Robinson Way, so I have no agreement or contract with them

The first thing I saw was the Claim Form, so didn't have time for the CPR 31.14,

Shame as there is a great template I have saved.

The Claim form wording is the same as others on this site, and totally unreasonable.

I have submitted the AOS and have elected to defend the entire claim.

Next step send the CPR 14 and the CCA to their respected recipients and then the defence that I have some ideas on.

Questions,

Are the requested documents the same in the CPR 31.14 and CPR 14?

If so can I use the excellent CPR 31.14 template ( I shamelessly lifted) and change the reference?

I am playing catch up and have 14 days to submit the defence

- the same time they have to respond

- so I will not get these before sending the defence.

Any thoughts on this would be appreciated

I will fill in your info sheet in the next post.

Many thanks in advance.

Who advised you to stop the manageable regular payments? That was probably very bad advice because if you had carried on with the agreement, nobody would have been able to take action against you on that debt.

Have you filed an acknowledgement?

Please will you post up the claim form in PDF format and also fill this out

an you please fillthis out

so we have all the correct info to be able to assist you properly

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**(1-Viewing)-nbsp

dx

Name of the Claimant? Hoist Portfolio Holding 2 Ltd (Solicitors Howard Cohen and Co)

Date of issue Feb-17

What is the claim for – the reason they have issued the claim?

1.The claim is for the sum of £12,000 (approx) in respect of monies owing

under an agreement with account no. xxxxxxxxxxxxxxxx pursuant to the Consumer Credit Act 1974 (CCA)

The debt was legally assigned by Barclays Bank PLC (Ex Barclaycard) to the claiment and notice has been served.

2.The defendant has failed to make contractual payments under the terms of the agreement.

A default notice has been served upon the Defendant pursuant to s.87(1) CCA.

3.The claiments claims

1. The sum of £12000 (approx)

2. Interest pursuant to s69 of the County Court act 1984 at a rate of 8.00 percent from the 18-2-15 to the date hereof 712 days is the sum of £2000 (approx).

3. Future interest accruing at the daily rate of £3 (approx)

4. Costs

What is the value of the claim? £15000 (approx)

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Credit Card

When did you enter into the original agreement before or after 2007? Before

Has the claim been issued by the original creditor or was the account assigned

and it is the Debt purchaser who has issued the claim. Debt Purchaser

Were you aware the account had been assigned – did you receive a Notice of Assignment? Yes, not an official document but a letter from the original creditor,

Did you receive a Default Notice from the original creditor? Don't know

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

Why did you cease payments? Financial Difficulty

What was the date of your last payment? 2015

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan? Yes

Yes probably bad advice but we are where we are.

Yes submitted the Acknowledgment of Service, Defend All

Will PDF the claim form with the specific info blanked in case of trolls.

pop up on the MCOL website detailed on the claimform.

.

register as an individual

note the long gateway number given

then log in

.

select respond to a claim and select the AOS box.

.

then using the details required from the claimform

.

defend all

leave jurisdiction unticked.

click thru to the end

confirm and exit MCOL.

.

get a CCA Request running to the claimant

leave the £1PO blank and uncrossed

.

get a CPR 31:14 request running to the solicitors

.

don't sign anything

.

dx

As requested,

So to summarise, CPR 14 is not applicable as the court has not been assigned, so I should use CPR 31.14? I'll work on a draft

Claim Form.pdf

just click the cpr 31:14

4th in the list

CPR 14 is with regards to admissions...?

Anything else to add to the CPR 31.14?

CPR template removed..please read the instructions...do not post templates on the open forum..they are for members use only

Sorry,

My posts are crossing with yours

Already registered with MCOL and have submitted the Acknowledgment of service.

Question on court jurisdiction.

According to CPR 11, I can challenge the Jurisdiction up to 14 days after Submitting the AOS

According to the High court and County Court Jurisdiction order 1991 as amended,

The County Court has Jurisdiction over the CCA 1974 s139(5)(b) only, and this isn't applicable to my case, so is this worth doing?

why do you want to question it?

Only to make it as difficult and time consuming as I can for HPH2.

then you don't contest it

its there to HELP YOU

if you did that you would be smerging the court itself

not hoist

Thanks as always for the advice DX,

The CPR31.14 and the CCA (complete with the £1 PO) were sent just over a week ago and have not received any response.

The next step is the defence that I have been thinking about.

First I will argue about the interest that they say is owed,

It's not as this interest (iaw s69 of the County Court act) can only be awarded by the court and as we haven't been to court they cannot be owed this as stated on the POC.

Second, the claimant will have to prove that they own this debt.

As I have had no interaction with them nor made any payment to them I therefore have no contract with them.

As I see from another thread the judge insisted on a Deed of Assignment not a Notice of Assignment.

Please see below the quote, I can't post a link to the thread as I have too few posts;

From thread by Tommieboy 27-2-17 post 1

(I scanned this forum and got some good advice but the advice was split regards the deed with some saying it does not need to be shown and others saying it should.

Well today the judge rather slapped down the Lowell solicitor who told her she had no need to see the deed as the letter of assignment was proof enough. The judge came back with a raft of legal points before dismissing the case stating without the deed Lowell could not prove they owned the debt )

Question, Should I quote the Judge and this case in my defence to show the reason why the claimant should provide the deed? Would I need to know "the raft of legal points"?

The next question concerns the assignment.

I understand that the 1926 property act and the CCA (under s86A) defines how the debt is assigned, but I read somewhere that my agreement for the debt to be sold is also required, which is why it is included in the Ts&Cs that are agreed at the time of making the arrangement.

I have found the original Ts&Cs from the early 1980s when my agreement was taken out and it does not mention anything about assignment.

Is this a point for the defence?

As ever your continued advice is greatly appreciated.

Thanks DX, the advice is always appreciated.

Stick to the tried and tested defences in the Legal Success Forum.....the above was a one off..unless your going to get that same Judge..same court.

First time I have heard of a Judge question the Deed of Assignment in 10 years here on CAG

Andy

Thanks Andy,

Am I correct in understanding that CCA 127 (3) still governs an agreement taken out prior to April 2007 (mine was in the 1980s), and as such the claimant has to provide the actual signed agreement without which the court are unable to enforce?

yes use our std holding/no paperwork defence

there are hundreds of hoist Barclaycard claimform thread

most have it

KISS

Keep It Simple Stupid.

Thanks Andy,

Am I correct in understanding that CCA 127 (3) still governs an agreement taken out prior to April 2007 (mine was in the 1980s), and as such the claimant has to provide the actual signed agreement without which the court are unable to enforce?

It does indeed

Thanks DX, I will do but there is some interesting stuff out there, could I possibly run this past you;

CCA s40 states

"A regulated agreement is not enforceable against the debtor or hirer by a person acting in the course of a consumer credit business or a consumer hire business (as the case may be) if that person is not licensed to carry on a consumer credit business or a consumer hire business (as the case may be) of a description which covers the enforcement of the agreement."

It therefore stands to reason that IF HPH2 have purchased my credit agreement, than they ought to be licensed, but they're not.

FCA search shows

Hoist Portfolio Holdings 2 Ltd(Postcode: JE2 4YE)

Consumer Credit Interim

652220Cancelled

On the face of it this would show non compliance by them on a point of law?

they are covered by the group registration

id simply be using our search CAG box of the top red toolbar

hoist barclaycard claimform

Thanks DX,

I see the same question on another thread.

I'm ready with the standard defence that I shall post next, and with all the research and help from Andy and yourself I think we're in control.

I can’t help thinking though that as I've had no contact with Hoist or any of their agents, I cannot have entered into any contract with them.

They have purchased my debt entirely at their own discretion and so cannot have suffered any loss as a result of any dealings with me.

So, can they sue me if they've suffered no loss?

I thought that this was whole principle in bringing a claim?

So is it worth including the following paragraph in the defence?

The defendant has had no prior contact and denies entering into any contract with the claimant or its agents. The Claimant therefore has suffered no loss as a result of dealings with the defendant and therefore has no standing in bringing this claim.

they buy the complete debts and all the rights the OC had,, for a knocked down price

quite legal sadly

and more the 99% of claims succeed mainly because they go undefended..

most defended claim they lose.

if everyone stopped paying DCA's tomorrow

the whole industry would collapse overnight.

sadly 99.9% people think a DCA is a bailff they are not

you or I have exactly the same powers...issue a CCJ.

there was a report a month or 2 back

there are over 750'000 claimform issued last year..

do the maths

its a money winner..

Very true DX, and I do understand that they buy the rights of the OC, but ssomewhere in the system will be a clause that defeats their profiteering, I'll continue to dig.

Please have a look through the defence below. I have left the discussed clause in as I'm told the words do have a legal meaning and may make the judge think, in any event, I don't think it can harm the defence, but I'll go with your / Andy's advice;

Northampton County Court

Claim No XXXXXXX

Between:

Hoist Portfolio Holdings 2 Ltd

(Claimant)

And

XXXXX XXXXXXX

(Defendant)

The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. It is admitted with regards to the Defendant having held a credit card in the past, referred to in the Particulars of Claim ( the Contract ) with the original creditor Barclays Bank.

2. The defendant denies any liability for any alleged balance but is as a result of unfair and extortionate penalties being applied to the account.

3. The Defendant denies the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the unfair terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

4. The defendant has had no prior contact and denies entering into any contract with the claimant or its agents. The Claimant therefore has suffered no loss as a result of dealings with the defendant and therefore has no standing in bringing this claim.

5. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

6. The claimant is denied from added section 69 interest within the total claimed that as yet to be decided at the courts discretion.

7. As per Civil Procedures Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

8. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 27-2-16 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.

The claimant is therefore put to strict proof to:-.

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

9. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Thats an Overdraft Defence MF not suitable for a credit card claim.

Regards

Andy