I have a mediation planned with regard to a small claim issued against me by Howard Cohen solicitors on behalf of hoist portfolio that I have a few questions about that I would like help on please.
A bit of back ground information..
The debt for £2900 was originally passed to MDKP LLP in November 2014, the account was then assigned by MKDP LLP to their client Hoist Portfolio in December 2015.
I had a payment plan set in place of £50 per month and made payments reducing the total outstanding to £2000,
in around June of this month i fell in to difficulty and missed a couple of payments,
I called and explained and was asked to provide an income and expenditure to show what i could afford and was told they would send me the appropriate paperwork for me to fill in.
Approx 2 weeks later I received a small claims pack requesting the sum of £2000 + costs so roughly £2200,
I called Hoist Portfolio and explained I was waiting for an income and expenditure pack and was told by a rather snotty woman
"its too late now, we will not accept any payments on this account no matter what you send in to us,
we have forwarded this now to our legal department and we are taking action against you"
I was then told it would be easier in the long run if i accepted the action and waited to see what the judge asked me to pay,
I thanked her kindly for her useless information and hung up!
I followed directions that have been posted on here and clicked defend all and sent the pack back,
but first i sent a CCA request and a cpr 31.14 both went unanswered,
I then submitted my defence on the last day i was allowed and its posted here.
Particulars of Claim.
1.This claim is for the sum of £2000 in respect of monies owing under an Agreement with the account number xxxxxxxxxx pursuant to The consumer credit Act 1974
(CCA). The debt was legally assigned by MKDP LLP (Ex Barclaycard) to the Claimant 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 Claimant claims
1.The sum of £2000
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 accepted. In that I have had financial dealings with Barclaycard in the past. I do not recall with any precision the agreement the claimant refers to and have therefore sought clarity by way of a CPR 31.14 and CCA section 78 Request
3. Paragraph 2 is noted but again I have no recollection of the agreement or whether a Default Notice was ever served.The claimant is therefore put to strict proof to disclose the default notice its claim relies upon.
4. On receipt of the claim form, the Defendant sent a request under the customer credit Act 1974, by way of a section 78 for a copy of the agreement, and on payment of the statutory fee of £1.00; the Claimant did not respond and is and remains in Default of said s78 request. A further request was made via CPR 31.14,*
requesting disclosure of documents on which the Claimant is basing their claim. The claimant has failed to respond and to comply.
5. 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 and evidence the nature of any breach and Default Notice;
c) show how the Defendant has reached the amount claimed for and;
d) show how the Claimant has the legal right, either under statute or equity to issue a claim.
6. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed.
7. 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.
8. 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.
When I submitted i ticked the mediation box,
I was surprised to receive a response back that the claimant also ticked the mediation box
and i now have a meeting planned next week for a one hour time slot on the phone.
Since setting up the mediation I have received a pack from howard cohen with some old card statements showing the balance at £2900 from barclaycard until MKDP took over the debt, a reconstituted credit agreement with no signature of mine on or anyones for that matter, a couple of default notices and a notice of assignment.
Now what I find strange is the very footnote of the letter i received states the client will consider allowing me to repay the debt by installments for the outstanding balance on sight of my income and expenditure details and payment offer and states an arrangement can be formalized at the above mentioned mediation.
I just dont get why they would not entertain my offer before yet once i click defend they now add this footnote or is this a standard comment that they put knowing full well unless i pay the full amount upon mediation they will pursue me through the small claims court?
When I spoke with the lady who set up the mediation appointment she implied most cases dont end up being settled with the full balance being paid and kind of pointed me towards offering less than the £2000 they are asking for, not sure why she did this tbh.
My questions are,
1.are they nervous because they have no proof they own the debt?
2. what kind of payment plan should I offer initially expecting to have to go up a bit to where they want to meet me?
3.lastly realistically what are my chances of getting something set up without having to go to court and get a CCJ using the mediation process?
Thank you and sorry for the essay just thought it would be easier if i added all information i held.