hoist/Cohen claimform - old HSBC credit card 'debt'***Claim Dismissed with Costs***

[AndyOrch]

But he can impose sanctions......barring them from using any written evidence...difficult to win a case without documents.

[Big1978]

Hi Guys - in the post today I've received some documentation. I am so angry by this... but for the only reason being that they have blaitnetly lied about certain aspects. I really need some help in trying to decifer everything. I really really think they've made some glaring errors but I don't know how to start going about it. Oh yes - and there is nothing on the forms with my signature.... anywhere!!

[mpmmpmpmp]

Still a day after the court order so worth asking to be struck out imo. Did it come via recorded/special delivery? What date is on the WS? You will probably be advised to upload the document but make sure you remove all your personal information/claim no./ anything that can identify the case. Youre going to have to quote acts to show why its not enforceable without a signed agreement so start finding them. Its not good enough to just say 'hasnt got this and that' you must show why and where it says it must have it if youre going to win. Best to have more than one argument as well imo just incase. Im not an expert so take my advice with a pinch of salt and do your own research. Good luck. If you dont want to do the above, a solicitor will cost around £200 to look at it, £300 to write a WS and ~£175/hr in court from what I have found. No guarantee they will win either.

[Big1978]

I emailed the court yesterday so I guess I'll hear from them next week. I'm going to speak to a solicitor using our home insurance legal coverage. Some of my argument will be based on the fact the "default notice" served apparently has such a laughable address on it... it has part of my address from a house that I had no idea existed on the date that they "apparently" sent it and it was a good 3 years before we even moved there with a selection of each address I've lived at (so either they're psychic or they're fabricating information in the court paperwork).... A postcode that doesn't even exist and additionally there is nothing on their letter that relates to me... The "letter" they "apparently sent me stating that the debt had been sold on is literally a template (you know the mail merge type of thing).

[Big1978]

Oh yes - and it wasn't sent recorded delivery

[AndyOrch]

I emailed the court yesterday so I guess I'll hear from them next week. I'm going to speak to a solicitor using our home insurance legal coverage. Some of my argument will be based on the fact the "default notice" served apparently has such a laughable address on it... it has part of my address from a house that I had no idea existed on the date that they "apparently" sent it and it was a good 3 years before we even moved there with a selection of each address I've lived at (so either they're psychic or they're fabricating information in the court paperwork).... A postcode that doesn't even exist and additionally there is nothing on their letter that relates to me... The "letter" they "apparently sent me stating that the debt had been sold on is literally a template (you know the mail merge type of thing).

 

So why are you looking for Solicitor ?...you should be having a field day with all their botched up clutching at straws patched up documents. ?

[Big1978]

I guess I'm just worried, Andy.

 

Never been in this position before. My hubby and I have been talking about this all day. I don't think I've ever seen anything so abhorrent before....

 

Tomorrow we're going to go through everything and highlight all their errors.

 

Advice on how to respond would be appreciated

[AndyOrch]

Go through the documentation making notes of all the errors and legal reasons why its not valid...then you prepare a Supplemental witness statement which you will file and serve not less than 3 days before the trial in addition to your main witness statement.

 

It you can also scan and post up the docs redacted.

[Big1978]

Ok - will do. Do I refer to the CCA section 78 in the supplemental WS referring to their inability to provide a signed original agreement (it is pre 2007).

[Big1978]

It's pre 2007 - "apparently" the agreement was signed in 2006...

 

I will redact and detail everything and then post up.

[AndyOrch]

Yes it is pre 2007 ..forgive me....so no reconstitutes for you

[Big1978]

Hi folks - please see the documents received (redacted).

Your thoughts and advice would be appreciated as I go about trying to do this supplemental WS...

 

As I see it at present:

 

1. No signed original agreement submitted

2. Never a response to my repeated requests for CCA/CPR - why has it had to get to the court stage before they submitted their evidence if they had it all along?

3. The NOA letter they've included in their WS/disclosure bears no resemblance to what they actually sent me previously

4. No default notice received (so their template they refer to is not relevant (I believe)

5. The "statement" (heavily redacted as I think it could identify the case) from the original creditor would be easy to replicate on an excel spreadsheet.

REturn.pdf

Edited March 5, 2017 by dx100uk
23Mb attachment reduced to 1mb - dx

[dx100uk]

so two sets of blank T&C's they've got out of their filing cabinet or from here or other such sites on the internet.

total bogroll.

[Big1978]

That's exactly what I thought! Also I believe with the date and address thing on their "NOA" letter they sent to me in 2013 is tantermount to perjury... Because one part of the address is our current house - a house we didn't know even existed in 2013!!!

[AndyOrch]

Its all irrelevant anyway without a signed copy of the credit card agreement or proof that any of its connected......bit like having a car with no wheels...aint going anywhere:wink:

[Big1978]

Thanks guys! So do I detail exactly what is wrong with their WS like:

 

1. No signed credit agreement (in accordance with section? of the CCA)

2. Bringing the issue with the address on the NOA letter to the courts attention.

[AndyOrch]

Post#107 in the following thread wil give guidance on the submittance of a supplemental witness statement ...

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?467980-HPH2-Cohen-claimforn-old-Barclay-card-debt/page6

 

Further information with regards to compliance of a section 77/78/79 request

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?436197-Rules-about-the-duty-to-provide-a-CCA-agreement-and-the-consquences-of-not-doing-so

 

And the relevant legislation....

 

http://www.legislation.gov.uk/ukpga/1974/39/section/78

[Big1978]

Hi all - please see below my first attempt at the SWS. You're advice/guidance would be appreciated.

 

--------

 

 

I xxxx, being the Defendant in this case will state as follows;

I make this Supplemental Witness Statement further in support to my previous witness statement.

 

1. I submit this Supplemental Witness Statement due to receiving claimants’ disclosures and witness statement late, this I felt was to disadvantage me, even though I had requested these documents, in my request, which was acknowledged on the xx/09/2016.

 

Exhibit A. My letter requesting documents.

Exhibit B. Letter from Robinson Way confirming request of documentation mentioned in particulars of claim dated xx/09/2016 within 14 days, of which none was produced.

 

2. In the claimants witness statement Section 4, marked “xxx1", they claim I was contractually obligated to make minimum monthly payments and enclosed a copy of the original and final terms and conditions. This is 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). Under the Act:

The Agreement must contain a Credit Limit, or a reference that the Credit Limit will be set at a later date, or a statement that no Credit Limit is required.

 

The Agreement must declare the APR% rate, monthly and/or annually.

 

The Agreement must contain a date/or indication of a date such as weekly, monthly or annually, for payments to be made, or state a date will be decided upon later, or that monthly statements will be provided to show the date of required payment.

 

The Agreement must contain a notice of your right to cancellation - usually 14 days from the date signed.

 

Or a condition that it may not be cancelled under the Act and/or various others.

 

The Agreement must contain ALL Terms & Conditions.

 

The agreement must be legible, and the type face distinguishable from the background colour.

 

The Agreement must be signed by both parties - Debtor and Creditor/or their representative and dated.

 

Any copy of the Agreement lawfully requested by the debtor under section 78 of the Consumer Credit Act 1974, must be a valid and true Certified Copy of the Original Agreement - in this instance, reconstituted agreements are not valid, true copies and are unacceptable.

 

All of the above, must be contained within a single, signed document and parts may not be sent separately, or issued under separate cover.

I therefore respectfully request that the case is struck out pursuant to CPA 3.4(2)c there has been a failure to comply with a rule, practice direction or court order.

 

3. Section 5 – Exhibit xxx2

1. No mention that the paperwork is from HSBC. It certainly is not, as stated, copy statements. Because of the questions raised by the authenticity of Exhibit xxx5 I believe this random piece of paper should be called into serious question.

2. There is no indication of any payments made against the alleged account; so it was in default/dispute from the very first “statement” but this could be a spreadsheet that has been concocted so how can it be proven that this is an actual credit card account.

 

4. Section 6/7/8 - Exhibit xxx 3 - This “evidence” does not appear to mention HSBC either and the amounts do not correlate with the original Notice of Assignment dated xx/06/2013. Additionally, apparent dates on this piece of paper seem to indicate activity on the account after the alleged debt was sold on. Exhibit xxx 4 No default notice ever received so the point of the Claimant including a template is, I believe erroneous.

 

5. Section 14 - The claimant states that during their submission of the particulars of claim form they were restricted in the number of characters allowed for electronic issue, however according to County Court Business Centre rules of membership (version date 30/09/2013), section 5.2.1 and 5.2.2 it is argued that the claimant could have issued a separate more detailed particulars of claim within 14days of issuance of claim (Exhibit C).

 

6. Sections 9 & 16 – It is duly noted that the claimant contests my previously submitted defence, however the claimant is yet to provide me with a signed original agreement as required by section 78 of the Consumer Credit Act 1974. Further, exhibit xxx5 which purports to be the Notice of Assignment dated xxth of June 2013 raises some questions. The address it is addressed to does not exist and appears to be comprised of lines from multiple different address’s, interestingly one of these lines is for my current address which I did not move to until October 2015, which is over 2 years after the claimant states that they sent this letter, a further item which I bring to your attention is the original notice of assignment from HSBC informing the defendant of the sale of the alleged debt, this document which has not been previously relied on as it was not relied upon in the particulars of claim can now be found as exhibit D. Interestingly there are a number of other differences so I argue that xxx5 is not the original Notice of Assignment.

It is therefore my contention that the claimant is still in default of my section 78 request and prevented from seeking any relief.

 

Statement of Truth

[mpmmpmpmp]

Have you altered the Default Notice to hide information or is that what they served on you? They quote s136 of the Law and Property act as right to transfer the debt and sign it off from HSBC, according to s82 of the Consumer Credit Act it must be the Assignee who issues the Notice of Assignment. s136 says the assignor can sign it off. Which takes precedence on a consumer credit agreement, does anyone know? Is it irrelevant? Without the signed original I think you can be pretty confident the CCA wont be accepted, I would find the correct part of the act and quote it if I was you. I think its s61 and s127(3) in your case, I may be wrong. I would include the failings of the default notice as well if I was you. s87-89 details what it must include.

[Big1978]

No - I've not altered anything they sent me (save to take identity information out).

We haven't changed the 'Default Notice'' at all, it actually came as part of their witness pack already anonymised.

[dx100uk]

Mmmff. This was already answered on your own thread

[mpmmpmpmp]

Was it? Must have missed it, working full time and trying to figure this stuff out leaves you tired. The default notice doesnt comply with the act so is worth saying so imo. I wouldnt provide them with the genuine Notice of Assignment either if I was you. Feel obligated to tell you I am not a solicitor or an expert in consumer credit agreements I'm just sharing what ive found being in a similar position to you. Double check everything.

 

There is nothing in my thread regarding that Dx, good job contributing to the thread buddy. Have fun adding paragraphs.

[Big1978]

But if I don't include the original NOA I cannot refer to it in contradicting the evidence they've submitted? How do I get round that?

[mpmmpmpmp]

Maybe you would be better putting it in then, I dont know to be honest. My concern was if you show the Judge the genuine NoA you have proved for them that they own the debt and have fulfilled their duty to tell you. Im sure AndyOrch will give you an opinion on the matter in due time.

[Big1978]

In my defence I said this:

 

"I have in the past received a legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1) from the original creditor. But I do not recall ever receiving a Default Notice pursuant to section 87(1) CCA or any advance notice or warning."