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r710

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  1. Evening, Just wanted to update that today we received a letter from Howard Cohen stating that their client has instructed them to "discontinue the claim". A copy of the Notice of discontinuance is enclosed. I am so relieved and so grateful for your help. I will be making a donation to the site when I am paid tomorrow. I don't doubt that I will need to return in future for more advice but I understand that any further claims that come up may soon be statute barred as my husband ceased trading in early May 2011 and no payments were made, nor acknowledgements made, after this time. Thank you so much. You do a great job for us all. r710
  2. Hi, letter from local Court stated claimant must pay £335 by 4pm on 24th April or claim will be struck out. It goes on to say there will be no further correspondence from the court regarding payment of the fee or warnings as to the consequences of non-payment. My husband called the court today, 25th, and he was told the fee hadn't been paid but they would write to the claimant today and give them 7 more days to pay it. It would seem, rather positively, that if the claimant has not paid yet, there is likely to be a reason (ie. as you have said before that this is just a speculative claim). But is it usual for them to be given extra time and a reminder to pay the fee? In your experience how likely is it that the Claimant just overlooked payment of the trial fee? r710
  3. Great, thank you. So very grateful for your help. I don't feel so alone with this. r710
  4. Thanks dx100uk, Thank you for clarifying that. That makes sense now. Trial is listed for 5th May. Directions are to return no later than 14 days before, so was thinking I would post special delivery this Thurs to arrive on Fri. This is the last day as I understand to comply with directions given to us. It won't surprise you that we have not received a the documents Cohen rely on yet. As far as "exhibits", is it correct that I only list the CPR request and then the witness statement? I can't think of anything else we have, unless we are expected to include post office receipts to prove our correspondence with Cohen in response to their claim... Regards
  5. Good evening. I've looked around and tweaked an example OD witness statement that I thought best met our circumstances. Can someone please advise on the below? Paragraph 6 is very relevant in part but the example states that the CPR 31.14 does apply because in that example, the claim was trackless. Does that mean it doesn't apply if it's been allocated to small claims track? I am aware this may need removing or rewording but just want to check my understanding. WITNESS STATEMANT OF XXXXXXXXXX I.XXXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:- 1.It is admitted that I have held a current account with HSBC in the past. The account was opened around 1984 and used to facilitate the payment of my income and expenditure. 2.It is admitted that I accepted a facility/service offered by HSBC to be able to overdraw to a limit set and reviewed by HSBC on the balance of the above current account. 3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by HSBC due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair terms in Consumer Contract Regulations 1999 on this point. 4. It is denied that I defaulted on an “agreement “. An Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced. I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which HSBC failed to comply with. 5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136). Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned. The assignment must be absolute. The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt. The assignment must be in writing and signed under hand by the assignor. Notice of the assignment must be received by the other party or parties for the assignment to take effect. Again it is denied any Notice of Assignment was ever received. 6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14 Namely to show how I entered into an agreement Show how the claimant quantified the amount claimed Show and evidence service of Notice served under Sections 76(1) and 98(1) And to show how the claimant has legal right either under statute or equity to issue a claim in their name Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences. 7.The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon, therefore their claim to section 69 interest is also denied. 8.Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial. I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable. As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed. It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out pursuant to CPR 3.4 as having no basis. I believe that the facts stated in this Witness Statement are true. I'd welcome your thoughts as to whether this suffices. Regards, r710
  6. Thank you. So I will just go ahead with complying with our directions and see firstly if they pay the fee, and secondly, if they comply with the directions - although I have read that the claimant often submits the late, having had then the opportunity to read the defendant's witness statement and documents. Clearly it's case of one step at a time. I'll have my witness statement sorted by tomorrow eve. Regards, r710
  7. Hello, we finally heard that the claim was allocated to Small Claims track and were contacted by our local court, citing a hearing on 5th May. The Notice of Allocation document states we must send to the Court and the claimant a witness statement and copies of all documents which we rely on no less than fourteen days before the hearing. Does this mean to include the day of the hearing? So would this be by Fri 21st April? I now need to get on with the witness statement sharpish, and will post on here for your advice. This rests almost solely on the fact that they have not provided any documents for us to acknowledge any particular debt. The claimant must pay £335 by Mon 24th. Does it ever get to this stage and the claimant backs out? In a way I am glad to think that this will be over one way or another soon, but on the other hand the thought of this progressing terrifies me. I am trying to remember someone's wise words that nothing has changed yet and we essentially need to see what documents they produce. Mentally I am running on empty. A very close relative has been critically ill in a hospital out of area for several weeks, and I recently experienced a significant emotional trauma. My husband is continuing to bury his head in the sand over this despite my warning that I cannot speak for him in Court. But for our children's sake, I have to try to challenge this as far as I can. I'll post my witness statement asap. Regards r710
  8. Thanks Andy. Just a quick question. Do I have to send Howard Cohen a copy (unsigned) of the DQ at this stage? The Order for stay from the Court does not specifically state this.
  9. Hi, we received a "Standard Order for stay for settlement with consent of all parties" form. This confirmed that on or before 14th Feb that one of the following has to happen: Either the claimant must notify the court that the whole of the claim has been settled Or the claimant or defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards settlement .. This letter should confirm the agreement of all other parties. Or All parties must file a completed DQ at the court. .... We haven't heard anything from the Mediation Service but from what I read this is not uncommon due to the short timescale provided. We haven't heard anything further from Howard Cohen/Hoist. (other than their DQ - already discussed, which offered a line inviting us the claimant will consider reasonable proposals.. Is it right that I now have to submit a further DQ, which I presume would state no to mediation? And I would write the reasons in the box provided on the DQ - that Neither Hoist/Howard Cohen or the Mediation Service has made contact and that in any event, mediation will fail as they have not provided the paperwork requested? I will need to post this tomorrow morning if so. Thanks in advance r710
  10. Thank you, trying to keep my anxiety in check and your words are reassuring. I'll update when I hear from the court directly. r710
  11. Hi, we have received a copy of the Claimants DQ which has been filed to the Court (double checked on MCOL). It came with a covering note stating that the claimant will consider any reasonable proposals to discharge the sums claimed.. They have requested a stay of one month. MCOL shows that an Order was made on 26/1/17 for "stay of settlement". They agree it should be allocated to the Small Claims track as it "relates to straightforward Consumer Credit matter and there are no points of law to address in respect of the defence filed". Their draft directions: 1. Pursuant to CPR 26.7(2), the Claim will be allocated to the Small Claims Track. 2. There be a stay in proceedings of 1 month to allow both parties to negotiate settlement of the claim by way of the Small Claims Mediation Service. 3. Both parties to inform the Court by if settlement has been agreed or if an extension of the stay is required. 4. If a settlement has not been agreed, then the Claim to be transferred to the Defendant's local Court to be allocated to the Small Claims Track and listed for a Hearing on a date to be fixed by the Court with a time estimate of 1 hour. 5. The Claimant pay the hearing fee on a date to be fixed by the Court. 6. No expert evidence being necessary, no party has permission to call or rely on expert evidence. 7. Each party shall deliver to every other party and to the Court office, copies of all documents on which they intend to rely upon no later than 14 days before the hearing along with a signed statement of truth. I know I now need to do a lot of reading of other threads around mediation and the next stage of the process, as I understand it we need to wait for the mediation service to contact us, but that this will fail as we still don't have the information from them that we need in order to be able to consider settling. If it then goes to court, it will hinge on what documents they produce 14 days before the Court date.. What impact does the info I gave in #16 have on what could happen next? Do we still have a chance with this? I'm worried that as this gets more complicated, and real, my husband will cave. I would appreciate some words of advice. r710
  12. Thanks, can get this off now. Much appreciated.
  13. Evening. Can I please just check it is right to send the claimant copy to Howard Cohen and not the actual Claimant, Hoist? It is Howard Cohen that is listed on the original claim as the "address for sending documents". Don't want to make a silly mistake at this point. I have checked through other posts and these just seem to refer to a "Claimant" copy I would be grateful for clarification. Thank you, r710
  14. Thanks Andy. Yes, found your good advice elsewhere! Would not have known what on earth I was doing otherwise. Donation has been made to this site. Away with work for a couple of days but will get this posted off at the end of the week. One copy to Court and one (unsigned copy to Howard Cohen), one copy for us. Will update you and return for further advice as it progresses. Many thanks. r710
  15. Hi, Is anyone please able to look over my draft N181 please and offer any advice around amendments needed? A. Settlement 1. Do you want to settle? Yes 2. Do I want a stay? Yes B. Court B2 Trial. Yes. My local county court xxxxxxxx I am the defendant C. Not applicable I am the defendant D. Case Management Information D1. Applications. No 2. Track. I believe this claim should be allocated to the small claims track. The Claimant claims: 1. The sum of £8687.88 2. Interest pursuant to s.69 of the County Court Act 1994 at a rate of 8.00 percent the sum of £3395.19 Interest has yet to be awarded at the discretion of the court, therefore the claim falls below the £10,000 threshold for allocation to the fast track. D4 Disclosure of non-electronic documents What directions are proposed for disclosure? Standard Disclosure. A request was made on 26th October 2016 to Howard Cohen and Co. Solicitors via CPR 31.14 for the disclosure and production of a verified and legible copy of the agreement/overdraft Facility confirmation and Terms and Conditions from that date pursuant to section 61B of The Consumer Credit Act., the Demand/Termination Notice, Notices of Sums in Arrears under running account credit CCA2006 sec 86C, Notice of Assignment. This request was not complied with. E Experts Do you wish to use experts? No F Witnesses Myself, All facts G Trial or Final Hearing Less than One day, 3 hours J Directions 1.The Claim be allocated small claims track pursuant to CPR 26.8 PD 2© It is not a complex case which is based on a simple contract and can be dispensed with in SCT. The alleged debt is below the threshold for Fast Track less the amount of interest claimed. 2.Each party must by 4.00pm on the (Court to confirm date) serve to the other party standard disclosure of the original documents on which this claim relies. In particular original copies of the agreement & terms and conditions, the default notice and the notice of assignment. 3.Each party must by 4.00pm on the (Court to confirm date) and serve on every other party signed statements of all witnesses of fact on whom they intend to rely 4.Costs in the case I would welcome any advice on the suitability of this draft N181 response, particularly in light of info shared in my previous post #16. Many thanks r710
  16. Hello, Have been spending some time reading around threads to get a better understanding of where we are at and what we might expect next. Am almost at the point of drafting my response to the N181 and sharing with you but thought I ought to highlight a couple of things that have come to light after some searching around. I have found old statements which show that this particular account number was my husbands personal account. This means that the agreement must have been pre-2007. He'd had an HSBC account for many many years before he defaulted (on every account he had), not sure exactly when he was given the overdraft but will have been way before 2007. Does this change much other than the onus for the claimant to provide the actual overdraft agreement and not a copy/reproduction? Does it make a difference that he used to have an annual review of his o/d and get letters that said the o/d facility has ended, but they are giving another on terms attached. You don't have to do anything etc.. Is that not his implied agreement that they can rely on and not need to provide the very original? I notice that a random statement we have from August 2011 shows he had stopped using the account, and that he had just gone over his £1000 overdraft limit due to the charges being applied. The sum they have given of £8687.88 must therefore predominantly be made up of bank charges applied in the years thereafter. I understand that as the figure is not over £10k, we can request that this is dealt with in the small claims court and not via the Fast track process (thus removing the risk of high fees/costs should this not go the way we would want). Finally, I have discovered some paperwork (Notice of Sums in Arrears - two for 2012, two for 2013, two for 2014 and one for 2015, and Statement of account - three sheets of paper covering Jan 2012 to Dec 2014) from Hoist. It was sent as a bundle in Jan 2016 to us. They state that it has come to their attention that "for a period of time you were not provided with certain documents in relation to your account". "These documents are official notices that the CCA 1974 states should be sent to customers who are in arrears of their original credit agreement". It goes on to say that during the time we were not provided with these, we would not be liable for any interest or default sum charges "but as no such charges were applied in this period this does not affect your account". NOTE: Whilst I think this relates to this particular claim, I cannot be certain. The amount on the statement is £8115.09. The ref number on the documents does not match any account number we have and it only states Ex-HSBC. Have looked at Noddle to see if this will confirm it's linked to this current claim but there are three "Other" types of debt all with Hoist against them. They do not show where they originated. The other two sums outstanding are £5565 and £12798. I would assume that the smaller of the two other figures would have started off as his business account o/d (also HSBC), I can only assume that it is does relate to the current claim I am aware of, and that they have added more charges/fees that haven't been updated onto Noddle... Does the discovery of this paperwork mean our original defence is now substantially flawed? (Point 3 of my defence) It had been my intention to ask that it is heard in small claims due to sums involved, and to submit standard directions as the claimant has not approached us in recent weeks. Any comments or advice on this? Thanks r710
  17. Thanks Andy, I really appreciate your response. I'll follow your advice in a few days when things are calmer. Happy Christmas to you. r710
  18. Hi, today we received a Notification of Proposed Allocation to the Fast Track. We have until 23rd Jan to complete an N181 form. I know I now have a lot of reading around how to deal with this but I will struggle to get some quiet time for reading for a few more days. Is this still something we can fight, given our circumstances? I'm hoping for some reassurance to stop me worrying all over Christmas... Regards, r710
  19. Thanks so much. Will update as to progress. Very grateful for this site. r710
  20. Thank you Andy. So I assume I am good to go with the following (second point replaced with agreed suggestion). 1.This claim is for the sum of £8687.88 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXX 2.The debt was legally assigned by MKDP LLP (Ex HSBC ) to the Claimant and notice has been served. 3.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account. The Claimant claims: 1. The sum of £8687.88 2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the 23/11/11 to the date hereof 1783 days is the sum of £3395.19 3. Future interest accruing at the daily rate of £1.90 4. Costs Defence The Defendant contends that the particulars of the 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 once having had banking facilities with the original creditor HSBC. It is denied that I am indebted for the alleged balance claimed.Any amount claimed is far in excess of any agreed overdraft limit with HSBC. Any alleged balance claimed is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue. 2.Paragraph 2 is denied.I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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. 3. Paragraph 3 is denied. I have never been contacted or requested by HSBC or the Claimant to pay any alleged overdrawn sums. 4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. The claimant is also put to strict proof to:-. (a) Provide a copy agreement/overdraft 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 all excessive charging/fees and show how the Claimant has reached the amount claimed. (d) Show how the Claimant has the legal right, either under statute or equity to issue a claim. (e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct. 5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 26 October 2016 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim. The Claimant has failed to respond or comply with this request. 6.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. Will be very relieved to get this sent off as the deadline is Monday. Thank you for your help. r710
  21. Thanks Andy for highlighting that. Could it be as simple as stating: Paragraph 2 is denied. I have never been contacted or requested by HSBC or the Claimant to pay any alleged overdrawn sums. Or should I use... Paragraph 2 is denied. Any amount claimed is far in excess of any agreed overdraft limit with HSBC. Any alleged balance claimed is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue. Please let me know what you think. Thanks r710
  22. Good evening, I wonder if someone could offer any advice about the following for a defence? Particulars of Claim: 1.This claim is for the sum of £8687.88 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXX The debt was legally assigned by MKDP LLP (Ex HSBC ) to the Claimant and notice has been served. 2.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account. 3.The Claimant claims: 1. The sum of £8687.88 2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the 23/11/11 to the date hereof 1783 days is the sum of £3395.19 3. Future interest accruing at the daily rate of £1.90 4. Costs Defence The Defendant contends that the particulars of the 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 once having had banking facilities with the original creditor HSBC. It is denied that I am indebted for the alleged balance claimed. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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. 2. Paragraph 2 is denied. HSBC have never served Notice pursuant to 76(1) and 98(1) of the CCA1974 and therefore the Assignee is therefore prevented from seeking any relief for any alleged outstanding balance pursuant to the CCA1974. 3. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. The claimant is also put to strict proof to:-. (a) Provide a copy agreement/overdraft 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 all excessive charging/fees and show how the Claimant has reached the amount claimed. (d) Show how the Claimant has the legal right, either under statute or equity to issue a claim. (e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct. 5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 26 October 2016 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim. The Claimant has failed to respond or comply with this request. 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 would be grateful for some guidance as to what amendments may be necessary. Thank you r710
  23. Hi Andy, No, not a limited company, so nothing to dissolve unfortunately. r710
  24. Yes a debt related to the loss of his business. One appointment at the bank and he followed advice (notably HSBC), opening the account as a sole trader. All business debt he therefore was personally liable for.
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