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BettyBloggs

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  1. Hi All I wanted to wait a while for everything to settle. the Judge was utterly amazing he also threw out the case!! He pretty much argued the case for me with the ''per day'' solicitor that turned up. He had a go at them for not having provided the full documentation that I requested from day 1 and said how is the defendant supposed to investigate their case and put it together if they don't know what they are being accused of. He was very clear to them as well that if they are providing reconstituted docs they must advise why - not just for the sake of it. they must advise that xx happened to the originals i.e. a fire and we have checked with Barclay card and this is what they have advised was in use at the time rather than just presenting it. don't just assume you can present a reconstituted copy at the last stage, you need to show that sufficient steps have taken place to check it was the correct agreement. the main reason for dismissing was that the DN was invalid!! They hadn't given 14 days having counted the days inc weekends etc it was only 12 days. Also all the docs had been sent to addresses I was not present at for several years and in fact most of the addresses had wrong flat numbers on them. The only thing sent to the correct address was the court docs. Moral of this is don't give up or despair. Build a strong case. Do all your requesting and handing in of paperwork on time. Do a SWS if necessary. Find those gaps in their case i.e. not enough notice on the DN. Present as much evidence as you can gather. Thanks to everyone on this forum for all your time and input without it was much appreciated.
  2. literally feel up against a corner so long as they drum up a bunch of templates it's all good in the eyes of the law. Even their statements are to old addresses and with purchases that are not mine or definately. ANDY is there anything at all in regards to my SwS or paperwork that you can see i can use it seems that with templates used all the laws are covered
  3. you completely right thank you....my mind is so blank I've read these things and laws and i'm just not absorbing or seeing the actual parts where it fails but you've just clarified it completely! I've checked and it's not 14 working days! They've obviously included weekends, counting including the date on the DF it's 12 working days!!! Also you are right it does not include the name and address of the creditor it only shows the name and address of the Debt Collector and it does not state that the agreement is terminated if payment is not made. also I'm looking at the agreements t&Cs they have supplied and nowhere does it state the amount of credit should these reconstituted version. Should it not have the details of what credit limit they are giving? Doesn't the reconstituted agreement have to include all the prescribed terms including the amount of credit otherwise it fails S61 of the CCA? am i talking crap and this was repealed so not applicable to post 2007 agreements?
  4. also can i check something maybe I'm being silly here and don't understand how this works.. .the statement they have provided has a purchase interest rate of 1.313% this doesn't correspond to the standard PA rate they quote on the agreement which is 12.4% pa. can i argue this as proof that these are not the actual copies and are fabricated templates or can they get away with it because the T&Cs they provided as WS states Annual Interest Rates variable?
  5. Hi Andy just preparing for my court appointment and re-looking at all the details. On the claimant WS they have stated that the statements in this WS are made from my own knowledge on matters of which I have been advised by the claimant. Does this mean then that they are relying on hearsay and that the person who has signed the WS must attend court as they have not as far as I know requested permission to be absent? also checking through and found what I think is a point i need to clarify: a) The Default notice (issued by debt collectors acting as agents for Barclays) they have submitted dated 2011 shows one total figure owed b) A copy of a statement they have issued as evidence dated 2012 (one year post default notice) has a different figure about £200 extra from the Default Notice - the added Notice to allocate it to hoist shows this same additional £200. can additional fees and costs be added on top of the Default Notice?
  6. Excellent thank you kindly Andy... what is your opinion do you think I have sufficient to win (I know it's always at the judges decision) I've read somewhere about a point of hearsay and the person who signs the witness statement not attending, is anyone able to shed some light for me on this? Many thanks for everyone's time and input. CC
  7. Hi Andy or any other members if you have some time over the next day or so please could you take a look at my SWS I need to send it wednesday. To arrive thurs/fri which is 3 working days before. Many thanks to al Cc
  8. Hi all, after having spent the whole weekend trawling through this site and trying to come to terms with all the rulings I have 'borrowed' wordings from many of the previous SWS to aid me putting something together. it seems too long at the moment but please take a look. IN THE county court of x CLAIM NO: xxx BETWEEN: HOIST PORTFOLIO HOLDING 2 LTD Claimant -and- MR XXX Defendant I make this Supplemental Witness Statement further in support to my previous witness statement. 1. I submit this Supplemental Witness Statement due to receiving claimant sending their disclosures and witness statement late, this I fell was to disadvantage me, even though I had requested these documents, in my requests dated 2016. Exhibit 1. My letter requesting documents by recorded delivery to which none was produced. 2. In the claimants witness statement Section 3, marked "XXX", they claim to rely on a reconstituted agreement. In fact they have produced 2 reconstituted agreements, one from 2008 and the other 2011. Neither of these match with the date as mentioned in point 3 of their witness statement of xxth March 2009 when the credit agreement was entered into. Furthermore both of the agreements have 2 different addresses with the 2011 having an incorrect flat number. Furthermore the 2011 agreement is listed with an address I vacated in 2010. This in turn cannot be considered a true accurate version of the agreement. A reconstituted agreement must be an exact replica of the executed agreement less signatures, the reconstituted agreements that the claimant are relying on in court are simply invalid and does not comply with the CCA 1974 in either the giving of information pursuant to the section 78 or the requirements required for enforcement under section 78.6 (b). I refer the court also to the case Kotecha v Phoenix the obligation under Section 78 to supply a document which sets out the original terms, including the original terms as to interest rates. Exhibit 2 (case extract Kotecha v Phoenix) 3. I challenge paragraph 4 of the claimant's submission - i.e. that a reconstituted agreement is rendered enforceable as a consequence of Carey v HSBC : This case applies to how a creditor can satisfy their duty under the Consumer Credit Act 1978 following a s.78 request by the debtor, but in no way does it render a recon agreement 'enforceable'. Waksman QC, in the aforementioned case, was quite clear that a reconstituted agreement could only be enforced at the discretion of the Court. Until the claimant supports with evidence their claim that the agreement meets the criteria necessary for the Court to have discretion with respect to its enforceability, their assertion of compliance with s.78 being sufficient grounds for enforceability should be denied. On the basis of the above I request that the Court rejects the claimant's claim. Exhibit 3 (Carey V HSBC extract) 4. I challenge Exhibit XXX, statements presented are templates and not true copies. Furthermore the first Statement is for XX 2011 and the second is from 2012 with addresses listed for a property I vacated in 2010 and with the incorrect flat number. 5. It is denied that a default notice pursuant to s87 and s88 of the Consumer Credit Act 1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default furthermore it is dated XX 2011 to a property I vacated in 2010. A valid Default Notice is a strict requirement before enforcement action can be taken following a breach of a regulated agreement. Whilst the Claimant states that one was issued, and has disclosed a "reconstituted" version from their system, they have no evidenced that one was actually issued following the alleged default and thus complied with the terms of the Consumer Credit Act 1978. The Claimant is prevented from taking enforcement action until a valid Default Notice has been issued 6. Exhibit XX is challenged. It is denied that a Notice of Assignment was received with the alleged date XX 2013 and the claimant is again put to strict proof to produce a true copy of the original. Exhibit is merely a template and is also addressed to a property I vacated in 2012. 7. Exhibit XX is challenged. It is denied that a Notice of Assignment was received and the claimant is again put to strict proof to produce a true copy of the original not a template. 8. Until the claimant supports with evidence their claim that the Agreement meets the criteria necessary for the Court to have discretion with respect to whether it is enforceable, their assertion of compliance with s.78 being sufficient grounds to enforce should be denied. On the basis of the above, I request that the Court rejects the Claimant's claim. 9. I Challenge also point 12 of the claimants witness statement. The figure for the amount claimed appears to differ greatly from the particulars of the claim and also with the amount quoted on point 2 of the claimants Witness Statement. 10. As per CPR 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. 11. On the alternative, as the Claimant alleges to be an assignee of a debt, 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. 12. 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. I believe that the facts stated in this Witness Statement are true. Signed Dated Also from looking through the previous similar cases I'm even more worried now... it seems to really be 50/50 as to which way the judge rules, honest opinions please on my chances please! thank you all for your help so far. If it wasn't for this site I think I'd certainly have had a nervous breakdown by now! CC
  9. Major stressful day with all this, I can't even get the file right...hows this? Thank you for noticing and for your help... WSWSWS.pdf
  10. Hi all Latest update... Have received today (about a day late) from Hoist their WS... I'm so scared and nervous about this...Thinking of getting legal representation as I don't know If i can defend myself on the day...how to pay for it I don't know ...they've now upped the total claim to over 10k from 7k inc interest!!! Amongst other level talk they say 1. They say I've entered into the Agreement in 2009 a)agreement is a print out Barclaycard Conditions, no signatures with an old address say ADDRESS A typed in at the top b) then there is as part of this print out another one called Barclaycard One Pulse Agreement with a completely different address ADDRESS B (partially incorrect older address) 2. They mention Carey V HSBC case where the Judge accepted a reconstituted version of the agreement other than the actual signed agreement itself, thus agreement is enforceable 3 They state from time to time i made use of the credit facilities and that i was contracted to make minimum monthly payments. for this they have included 2 statement print out, these are very strange because they could be typed up by any computer there just using excel * Statement 1 is dated from 2011 at an address (incorrect flat number too) where I had not lived for at least a year where I moved out in 2010 and with items I definitely don't recognize . this shows debits and a credit and shows minimum payment to make etc but no logos at all just typed up *Statement 2 this one is from 2012, this is now 2 years after I moved from that address, can't make sense of it looks like charges maybe 4) Another exhibit is a Default Notice, a letter basically from a debt company apparently served in 2011 to the address I hadn't lived for a year (incorrect flat number again) 5)another exhibit is dated from 2013 and is another letter saying it's been transferred from barclaycard to MKDP, this time sent to another address that i moved out nearly 2 years prior to the letter 6) another exhibit saying it's a Notice of Assignment from 2015 to Hoist, this time the letter is addressed to my current existing address along with saying the details of their debt recover company and options for payments 7) this last exhibit is a letter from Hoist from 2016 advising they will issue proceedings if unpaid So I guess i have a lot of questions right now.... 1 - no signed agreement, without a signature it could have been anyone applying for this!! 2 - This case they refer to Carey where judge ruled without an agreement this is worrying anyone can print out a bunch of items 3- there's 2 lots of agreements with different addresses is this normal 4- Statement copies are very worrying they look like dodgy type ups, they are 1 and 2 yrs post me leaving that address and for items I don't even recognize 5- Default Notice - served to an old address with incorrect flat number and a year after I left that building how do i address this 6-Barclaycard allocation to MKDP sent to another old address and nearly 2 yrs post me leaving there, how do i address this 7-none of these letter APART from the last notice of assignment from 2016 have the correct address on them, i have never received any of these letters until I received the paperwork from the court 8- if they had all of these 'letters' and agreement s etc why did they not send it when I requested at initial stage as well 9 -their figrues are odd on one point they state that upon issusing proceedings there was a balance of over 6k 9proceedings stated under 5k debt plus interest and court to just over 7k) and then on another page they end their WS stating that the defendant has no valid defence and is liable for the folloing sums... amunt claimed over 9k costs etc and hearing fee total just over 10k how did they take a under 5k figure and get it to double, figures they quote each time are different Their WS has given me more questions than answers please desperately need your guidance please please what's my next step! Thanks in advance C
  11. Hi all Latest update... Have received today (about a day late) from Hoist their WS... I'm so scared and nervous about this...Thinking of getting legal representation as I don't know If i can defend myself ...they've now upped the total claim to over 10k from 7k inc interest!!! Amongst other level talk they say 1. They say I've entered into the Agreement in 2009 2. They mention Carey V HSBC case where the Judge accepted a reconstituted version of the agreement other than the actual signed agreement itself, thus agreement is enforceable 3. apparently from time to time i made use of the credit facilities and that i was contracted to make minimum monthly payments 4. they sta
  12. amazing thanks Andy I'll wait until you've had a look. Much appreciated. C
  13. Hi thank you so much for noticing the date my typo its 31 May! Don't know what I was thinking the nerves... Yes I'll wait for Andyorch to take a look.
  14. Hi all Latest update. they paid the court fee 2 days before the deadline and so I am now preparing my WS. I have never received anything from them other than the acceptance to Mediation. Both of the original requests sent show as delivered to neighbour on the tracking which I guess is the usual for them. Please can you kindly take a look at the below WS and make any corrections for me? Thanks in advance. Court date is 31 May so I am planning on doing Special Delivery to solicitors + court this 13/05 which should arrive by 15/05. WS: IN THE ******* COUNTY COURT Claim No. *********** BETWEEN: Claimant Hoist Portfolio Holding 2 Ltd AND Defendant ************ _________________________ ________ WITNESS STATEMENT OF xxxxxxxxx _________________________ ________ I ******, being the Defendant in this case will state as follows; I make this Witness Statement in support of my defence in the claim. 1. The claimant is an Assignee a buyer of defunct or bad debts which buy on mass portfolios of debt at a much reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party. 2. On or around the 20 November 2016, I received a claims form from the County Court Business Centre, Northampton, for the amount of £*****(total inc interest and court fees).The claimant contends that the claim is for the sum of £(****original credit card debt) in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).The particulars of claim fail to state when the alleged agreement was entered into. 3. Contained within the claimants particulars the claimant pleads that The defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. There are no details contained within its particulars about when the alleged default occurred or date of any alleged Default Notice or the degree of default or details as to how the sums claimed have accrued. The claimant is put to strict proof to evidence details of the default and service of any Default Notice. 4. The particulars of claim state the debt was legally assigned by MKDP LLP (Ex Barclaycard) to the Claimant and that Notice was provided by way of a Notice of Assignment. The claimant is put to strict proof to evidence the details of assignment. 5. On 23 January 2017 I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A]. I also enclosed a copy of the letter sent directly to Hoist Portfolio Holding 2 Limited, requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT B]. I received no reply. 6. On 23 January 2017 I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT C]. The claimant has failed to comply and therefore in default of said request. 7. Apart from the Notice of Assignment, I have not received any of the documents mentioned in the claimants Particulars of Claim. 8. The Claimants pleaded case is that the Defendant entered into an agreement with Barclaycard under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had a Barclaycard in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose this agreement on which its claim relies upon. Until such time the claimant can comply and disclose the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974. Statement of Truth I believe the facts stated in this Witness Statement are true. Signed: ________________________________ Dated: ________________________________ is this ok? SHould I add anything that Mediation failed due to docs not being supplier by Claimant? Many thanks
  15. Thank you kindly for this. Just confused with the mediation part as i had the call about a month ago before they reallocated it to another court and was told by mediation team it wasn't suitable for mediation as i didnt have any paperwork provided by the claimant. The claimant has never sent me anything on my initial requests for info only had a copy of their acceptance of mediation.
  16. Hi all, Have now received a letter from the court to advise notice of allocation to small claims track (hearing). They again said the court believes that your case is suitable for mediation and to accept this offer of this service to contact the mediation service. Then there is another paper with it which is a set of rules, and judges directions for preparation for the hearing. 6) each party must deliver to the court and to the court office copies of all docs on which that party intends to rely at the hearing no later than fourteen days before the hearing 7) originals docs brought to the hearing 8) Docs to be sent to the other part and the court must include statements of all witnesses and a few other points. It also says that unless the claimant does by 4pm on the XXX date (a month from now) pay the court trial fee of £3335 or file a properly completed application then the claim, will be struck out. It also details the hearing date which is roughly a month after the date they need to pay the fee by. Am I right in saying that currently I have nothing to do other than 1) wait to see if they pay the fee in a months time 2) if they pay fee by XX date send off my witness statement to make sure that court and claimant receive it no less than 14 days prior to court hearing date which is end of May 3) 3rd point it's confusing that they are also talking about mediation but I guess this could be standard practice in case parties want to last minute negotiate? Thanks in advance for your fantastic advice as always. C
  17. Hi all Latest update. finally received something from Hoist but was only the copy of acceptance of Mediation! Mediation called and Failed as I did not have all the info and was thus referred back to court. I have now received 3 confusing letters from the court: 1) 21 Feb - NOTICE OF TRANSFER OF PROCEEDINGS - Mediation team arranged for case to be transferred. Claim has been transferred to the county court hearing centre listed below (local one i requested). On receipt, file will be referred to a procedural judge who will allocate the claim to track and give case management directions. Details of judges directions will be sent to you in a notice pf allocation. 2) 1 Mar - GENERAL FORM of JUDGEMENT or ORDER- before proper officer sitting at the county court xxxx. Upon the courts own initiative without a hearing. It is ordered that the case be transferred to the county court xxxxxx (another county court in the same city) for allocation and directions CPR 3.3 (5) Because of this order has been made by the court without considering representation from the parties, the parties have the right to have the order set aside, varied or stayed. Party wishing to make an application must send to the court with fee to arrive within 7 days of service of this order...then at the bottom it's dated 23rd Feb which differs from the top. 3) attached to letter 2 there is another letter - dated 1 Mar - NOTICE OF TRANSFER OF PROCEEDINGS - this claim has been transferred to the county court ( the other one in town) for allocation. On receipt the file will be referred to a procedural judge who will allocate the claim to track and give case management directions. Details of the judges decision will be sent to you in a notice of allocation. Help what does this all mean, is it simply just the legal way of transferring it to another court? No idea what this CPR 3.3 (5) and right to having this set aside? Am i right in saying that I only need to do the Witness Statement when they send me the Notice of Allocation? Many thanks C
  18. Hi all just getting everything ready there is also an EX730 which i'm replying Yes to agree to flexibility and where it says do I have enough information i'm saying NO (not received anything back whatsoever not even the £1 PO back) hope that's ok thank you everyone
  19. Hi all further update. the 28 days expired early last week and I have received nothing at all back. I was trying to check what to do now and the MCOL website now says the following: DQ sent to you (with yesterdays date) Although I'm assuming it will come through by tomorrow does anyone know what this is? Many thanks Cleide
  20. Hi All, Thank you so much for your help. I have now made the changes as advised for point 3 and have filed my defence, probably have no time tomorrow so wanted to make sure i made it to deadline. Do I send a printout of the defence to the court along with copy of CCAand CPT letters and delivery proof? Or is there nothing to do now other than wait for the court? Thank you all!
  21. Hi all Posting my draft defense as my original was incorrect! I have copied and amended from a similar case here on this forum, can you please kindly take a look and see if this is OK? Also am I correct in saying that since I don't have any paperwork from them at the moment there is no reason to say it is possible it could be status barred as that would be admitting the debt? 1. this claim if for the sum £7197.89 in respect of monies owing under an agreement with the account no **************** pursuant to the credit consumer credit act 1974 (cca) 2.The debt was legally assigned by MKDP LLP (ex Barclaycard) to the claimant and notice has been served. 3. 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 4.the claimant claims 1. The sum of £4867.76 2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from 06/03/12 to the date hereof 1706 days is the sum of £1820.13 3. Future interest accruing at the daily rate of £1.07 4. Costs Defence 1 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. 2. Paragraph 1 is noted. I have in the past had an agreement with Barclaycard but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification by way of a CPR 31.14 and section 78 request. 3. Paragraph 2 is denied. I am unaware of any legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1) 4. Paragraph 3 is denied I have not been served with a Default Notice pursuant to the consumer credit Act 1974. 5. On receipt of this claim the Defendant sent a request by way of a section 78 pursuant to the Consumer Credit Act 1974, for a copy of the agreement with the statutory fee of £1. There has been no response to this request therefore the claimant is and remains in Default of said s78 request. 6. A further request made via CPR 31.14 to the claimants solicitor, requesting disclosure of documents on which the Claimant is basing their claim. The solicitors have failed to reply to this request. 7. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to: a) show how the Defendant has entered into an agreement and; b) show how the Defendant has reached the amount claimed for and; c) show the nature of the breach and evidence by way of a Default Notice pursuant to sec 88 CCA1974 d) show how the Claimant has the legal right, either under statute or equity to issue a claim 8. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed 9. On the alternative, as the Claimant is an assignee of a debt, 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 10. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.
  22. please go ahead and remove I'll take a look at the link and redo it tonight, thank you for your help!
  23. Hi thank you so much for your help. I sent the CCA to claiming it shows as delivered on the 28/11 but 'Delivered to your address or a neighbour' it's in Jersey that Hoist is based. The CPR was sent and shows as delivered on 25/11 and also shows delivered to your address or a neighbour and the solicitors are in Leeds. I haven't heard back from either and the solicitors and its 14 days tomorrow. Should I write to them both again chasing? Also I messed up on the acknowledgement as I'd completed it just before the above kind explanation and acknowled part admission!!! Can I change this when I submit the defence? Also I'm really confused as to how to defend myself as I've not received a single item from them? When do I have until to submit defence? The claim was issued on 17/11 I received it on 22 Nov and acknowledged the claim on 28/11. Can't believe someone can just put through a claim without providing proof on the offset. Thank you in advance for all your help
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