Hoist Portfolio/Howard Cohen Claim Form - Santander overdraft from 2009

[J2005]

Was this particular DCA chasing you for any of the other debts besides this one?

 

 

Can't recall. A lot interchanged - so much so that I am (or may have just finished now paying a separate debt, that Cohen's subsequently took over!)

[Guest]

Only physical stuff is a long print out of transactions back to 2007, which on the first page shows last transaction as being £30 paid between April 09 and May 2010

 

ok. they should then have to show there was an actual legitimate payment that they allege.

if so, then maybe it was re duress/mistake as the guys pose. wld be for you to show re that in rebuttal.

plus there could be the issue of when statute bar runs re an overdraft depending on the circumstances. edit, see that it was defaulted in 4/09 and closed nr then. seems then rests on the alleged payment?

[J2005]

It's all on the alleged payments yes.

 

Is it worth, asking them for prove if they have it?

[Guest]

they should have to show something re what they rely on re a payment in disclosure prior anyway. so i guess maybe wait for that as it has been allocated, see what they come up with?

mediation is WP.

[J2005]

I've received this morning the notice of a hearing to take place on 2nd December

 

It runs through what I assume is the normal stuff that says must deliver copies of all documents etc that will be used in court 14 days in advance.

 

So what would I need to pull together - just my witness statement? I have no doc's to present. Do I, in the meantime, ask for evidence of these payments? Or leave them to prove it on the day? I wouldn't want to know a couple of weeks and discover they have it though - if they have it now or in advance of this, I would rather know.

 

In terms of my witness statement - I say it is SB. Do I also make reference to the docs they have sent in my CPR, the document which shows my account opening but nothing about it having an overdraft?

[shamrocker]

Could you post up a scan of the directions document - erase any identifiable details first.

[Guest]

yes, your wit statement

as seems directed, they shld have to disclose 14 days prior re what proof/docs they have.

but, from your post #93, if they have what you have, then bar maybe unlikely. unless it wasnt a legitimate payment.

if they havent got the statements/definitive proof by then...whether they wld let it stay until, or..? not sure.

what again did they say/provide re the alleged payments in mediation

[J2005]

Sorry, I've been very busy with work so not come back to this yet. I will scan the documents later - I have their letter.

Obviously I can remove the identifiable features but if they are looking,

I would imagine the letter plus other info in here anyway would make it identifiable?

 

Ford - they said I had made payments, I said I hadn't.

They said they would check this and I said feel free.

 

 

Obviously this is stuff they can't use.

They then wrote to me, referencing the mediation, saying they have asked Santander

and these were who you paid, naming two DCA's.

 

 

As I say, I recognise one of the names.

They haven't though provided info on when I paid,

how much to each,

how I paid etc.

[jackreacher]

Sorry, I've been very busy with work so not come back to this yet. I will scan the documents later - I have their letter. Obviously I can remove the identifiable features but if they are looking, I would imagine the letter plus other info in here anyway would make it identifiable?

 

Ford - they said I had made payments, I said I hadn't. They said they would check this and I said feel free. Obviously this is stuff they can't use. They then wrote to me, referencing the mediation, saying they have asked Santander and these were who you paid, naming two DCA's. As I say, I recognise one of the names. They haven't though provided info on when I paid, how much to each, how I paid etc.

 

Well you have not paid so that is that. if they provide a payment slip demand to know HOW and Where it was paid by what method etc.Check with your own bank statements if you havent paid bring your own bank statements. . It is not unknown for a DCA to produce payment slips!

[J2005]

Here are the docs people have mentioned and that I have referenced when talking on here.

 

Page 1 is their response to my CPR request. You will see it mentions Credit Card agreement. (It's an overdraft).

Page 2 is the statement they reference in their letter (it's the last page of the statement and last transactions. As you can see they claim credits over a broad period of time. There are also a lot of charges!)

Page 3 and 4 is the agreement they wrongly mention, it was my application for a bank account (I already had an existing junior one). This application was two years before I started university and had a student overdraft.

Page 5 is the letter I mentioned earlier in the thread that they sent after my mediation appointment.

Page 6 and 7 is notification of allocation to the small claims track at court.

[shamrocker]

I've received this morning the notice of a hearing to take place on 2nd December

 

It runs through what I assume is the normal stuff that says must deliver copies of all documents etc that will be used in court 14 days in advance.

 

So what would I need to pull together - just my witness statement? I have no doc's to present. Do I, in the meantime, ask for evidence of these payments? Or leave them to prove it on the day? I wouldn't want to know a couple of weeks and discover they have it though - if they have it now or in advance of this, I would rather know.

 

In terms of my witness statement - I say it is SB. Do I also make reference to the docs they have sent in my CPR, the document which shows my account opening but nothing about it having an overdraft?

 

J2005 - Just returning to this post after having a quick look through your attachments.

 

 

My view is that you now need to get to work on a Witness Statement that would support your Statute Barred defence.

You have a copy of your credit file showing this account in default as of April 2009

(your reasoning for relying upon this is because you did not receive any notice of termination from the original creditor).

 

 

You dispute that you paid £30 into the account and also use Andy's point from page 1

- the account was CLOSED

- how can you pay anything into it?

 

 

Also, the statement carries dates, etc. for all activity, but they do not stipulate a date for the £30 payment??

 

 

Force to them to clarify

who the payment was made by,

how it was made,

and on what date.

 

 

You can probably also pin them on the agreement

- but there's no need to go there yet as statute barred defence is all you need.

 

The above are just observations after skimming back across your thread,

albeit some of the other guys will be better placed to advise that me.

 

 

Hopefully it will get you thinking a bit on it.

You've got just over three weeks to serve the witness statement so you may as well get working on it.

 

Sham

[J2005]

Thanks

 

I will start putting together a statement now

[Guest]

i see further now what you mean re their vague statement saying payment between 4/09 and 5/10. when in 4/09 and 5/10, they cant say/havent said atm? if a payment was made to those agencies then surely they wld be able to provide proof of it including a statement with the exact date? if there was one, and it was in april/may, then is over 6 years before they issued the claim.

remind, is there a default date on this, when was the termination/recall notice?

also, as suggested, that application may be n/a if re a different account.

[jackreacher]

Without proof of how and when it was paid, Statute barred . You could put them to strict proof in your WS. Deny Deny..

 

Read up on statute barred ask on here to double check your research. There are plenty of success stories. Above all keep it simple sometimes you can read to much and then keep reading getting nowhere fast. Its the strongest and easiest defence.

 

Shamrocker and Ford are there for you .. oh and right about the agreement totally invalid. Shows they are grasping at straws.

[J2005]

I can't find an example of a statute barred witness statement on here. Looking at other templates, I was thinking something along these lines (I probably need to word it better)?

 

Claim No: XXXX

in the court of XXXXX

Claimant (Name) v Defendant (Name)

 

1. I am the defendant in this case.

2. On x date, I received a county claim form for the sum of £XXXXXX

3. I submitted my response on MCOL, stating I would defend this case.

4. I submitted my defence, that as per the Limitations Act 1980, this claim was statute barred. This account was defaulted on x date.

5. No payment has been made to this account since this default date and I have not acknowledged this debt in writing during this time. In excess of six years has passed since this default and therefore this claim is statute barred.

6. I wrote to the claimant and their solicitors on x date, under CPR 31.4, requesting........

7. The claimant's solicitors responded with a document showing the opening of my account in 2003 with no mention of the student overdraft facility for this account which could only have come into effect in 2005 when I started university. (Appendix 1). This document is not in fact proof of an ovedraft facility agreement.

8. The claimant's solicitor also provided a typed document showing transactions on the account.(Appendix 2) They say that payment was made but give a vague period of time in which payment was made, and no information to whom an amount was paid, how much or exactly when.

9. The claimant's solicitor in a letter (appendix 3) say that these documents show the account is not statute barred. These documents do not show the account is not statute barred and no proof has been provided. The burden of proof is on the claimant.

10. The claimants solicitor wrote to me on x date (Appendix 4) to say that I asked during a mediation appointment for proof of payment. I did not.

11. This letter states that payment was made to two creditors, both of whom are not the claimant or the solicitor, and that this proves the claim is not statute barred. This is not the case and no proof of payment has been provided.

[shamrocker]

When is this due to be submitted?

 

When you say 'defence' you mean 'witness statement'...right?

[J2005]

When is this due to be submitted?

 

When you say 'defence' you mean 'witness statement'...right?

 

Yes I mean witness statement - amended now!

 

Court is 2nd December, copies need to delivered no later than 14 days before so I plan to send it recorded delivery on Monday, getting there 15 days in advance.

[jackreacher]

I would make it clearer to the court that you have asked the claimant for proof of where how and when the alleged payments were made.

 

You vehemently deny you have made those payments,

you have checked all your accounts for that period,

you have accurate records and no payments have been made by you. The claimant has failed to comply with your request to supply the requested information.

 

The whole SB case rests on this information being made available by the claimant. I would ask the Judge to order them to supply it.

 

Do you have your real bank statements for the time these payments are alleged to have been made?? please answer!...

I see in post 5 you say you were sent them so best to confirm..

 

At post 110 you have uploaded some documents..

are these what they have supplied under the CCA request?

did you do a CCa request (haven't time to read the whole thread again) on the grounds they have stated in their solicitors letter it is a credit card account..

 

Have they sent you anything else regarding the Agreement that you haven't uploaded..its difficult to help without fuller knowledge.

 

They are saying that I have requested (I haven't) and they have checked with Santander who have confirmed the payments were when they referred the debt to other debt collectionicon agencies

(and they have named these in the letter).

 

I just don't get all this.

If you paid a DC how did that payment end up as coming from you?

On mine a Dc payment account was set up.

 

I don't know if this originally started as a Overdraft at 16 or student university account at 18 or a credit card as n the solicitors letter.

 

You need to be accurate with your own beliefs of what is happening here. I have very little knowledge on overdrafts ... ??? help is on its way.

 

I would be very tempted to push the proof issue and make them sweat ... and work towards a very low one off repayment!

 

 

regards Jack

[J2005]

Hi Jack

 

It is easier if I break down your reply and respond accordingly. My replies are in read, yours in black above.

 

I would make it clearer to the court that you have asked the claimant for proof of where how and when the alleged payments were made.

 

So I should say I have asked for proof and all they have done is given me a name and no dates?

 

You vehemently deny you have made those payments,

you have checked all your accounts for that period,

you have accurate records and no payments have been made by you. The claimant has failed to comply with your request to supply the requested information.

 

The whole SB case rests on this information being made available by the claimant. I would ask the Judge to order them to supply it.

 

Do you have your real bank statements for the time these payments are alleged to have been made?? please answer!...

I see in post 5 you say you were sent them so best to confirm..

 

I have checked my account statements for this period. It's only from ringing Santander at the beginning of this process, which I mentioned in post 11, that gives any indication about when these payments were made. Howard Cohen have given no information other than the names of who I am supposed to have made payments to.

 

As I mentioned in post 11,

 

"Just spoken to the bank - after passing me on to collections they then just tried to give me the number for Hoist. I was then told the last action on the account was May 2010, but she only proceeded to then tell me about a credit in January 2009.

 

When asked about this, she said the account was closed in May 2009. However she then said there is a credit in Aug 2009 of £10 (She said she didn't know how this was paid, just that it was a credit) and another in May 2010 for £20.

 

I've re-checked my bank statements for that period now - I can not find details of a £10 payment in Aug 2009 and I can see a payment for £20 in May 2010 but the dates are a few days different and this payment is to a Credit Security Ltd."

 

Credit Security are one of the creditors that Howard say I pay. However they have not provided proof of this payment - only the print out in the docs in post 110.

 

 

At post 110 you have uploaded some documents..

are these what they have supplied under the CCA request?

did you do a CCa request (haven't time to read the whole thread again) on the grounds they have stated in their solicitors letter it is a credit card account..

 

No, these are the documents they sent in response to my CPR request. It's an overdraft account, as the county claim form said. They, I suspect, just haven't amended the standard letter they send out.

 

Have they sent you anything else regarding the Agreement that you haven't uploaded..its difficult to help without fuller knowledge.

 

No other documents regarding the account have been sent to me

 

They are saying that I have requested (I haven't) and they have checked with Santander who have confirmed the payments were when they referred the debt to other debt collectionicon agencies

(and they have named these in the letter).

 

I just don't get all this.

If you paid a DC how did that payment end up as coming from you?

On mine a Dc payment account was set up.

 

I don't know how they are saying these payments are from me. They are saying I made payments to these debt collection agencies. They have not provided any other information apart from I allegedly made the payment to. The only 'proof' is the account print out and letter in the docs in post 110

 

I don't know if this originally started as a Overdraft at 16 or student university account at 18 or a credit card as n the solicitors letter.

 

It's an overdraft account. That's also what the claim form says. I think they just made a mistake on that letter. However my point on this is that I asked in my CPR request for a copy of the signed agreement for the overdraft facility. They have not provided that. All they have sent is a form I signed, which I signed in 2003 when I set up a normal standard account to pay in wages. I didn't start university until Sept 2005 which would have been the earliest I could have gotten the overdraft they are wanting the CCJ on, as I needed to provide proof I was in university to get it

 

You need to be accurate with your own beliefs of what is happening here. I have very little knowledge on overdrafts ... ??? help is on its way.

 

I would be very tempted to push the proof issue and make them sweat ... and work towards a very low one off repayment!

 

 

 

 

regards Jack

[jackreacher]

Thanks for sorting out my very confused mind..lol.

 

I and others hopefully can give it some further thought.

 

I know your WS has to be in by Monday... You have something to send in so just have a look around for overdraft threads sb threads see if anything catches your attention.

 

You wont find a template as every case is different although most main points remain the same

[dx100uk]

http://cse.google.co.uk/cse?cx=partner-pub-0964707606882478:652l7hswbgv&ie=UTF-8&q=overdraft+witness+statement+statute+barred&sa=Search+CAG#gsc.tab=0&gsc.q=overdraft%20witness%20statement%20statute%20barred&gsc.page=1

[Guest]

your wit statement is what you will say in court with any exhibits, expanding on your defence, and re anything they have said in theirs.

have they sent you their statement yet?

[J2005]

your wit statement is what you will say in court with any exhibits, expanding on your defence, and re anything they have said in theirs.

have they sent you their statement yet?

 

No, they have not sent theirs yet

[J2005]

Ok, so I have been through all the advice and other threads and put this together. How does this look/sound? Anything I should add in/take out?

 

 

IN THE COUNTY COURT AT XXXX

 

Claim No. XXXX

 

BETWEEN:

Hoist Portfolio Holding 2 Ltd

Claimant

- and –

Defendant

Me

 

_________________________________

 

WITNESS STATEMENT OF ME

_________________________________

 

 

 

I xxxxx of xxxxxx being the Defendant in this case state as follows;

 

 

1. I make this Witness Statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

 

2. On 3rd June 2015, I was sent a Claim Form from the County Court Business Centre, on behalf of the claimant.

 

3. I acknowledged this claim and stated my intention to defend and subsequently filed a defence on 3rd July 2015. (Exhibit A) that the debt is statute barred pursuant to the provisions of section 5 of the limitation act 1980.

 

4. On 16th June 2015, I made a written CPR 31.14 request to the Claimant, Hoist Portfolio Holdings 2 Ltd, (Exhibit B) with a copy sent to their solicitor Howard Cohen and Co, requesting copies of documents mentioned in the particulars of claim

 

5. These letters were responded to by the claimants solicitors, Howard Cohen and Co on 16th July 2015, after the deadline for the submission of my defence, stating that they were retrieving the documents and granting an extension of time. To date, no response to my CPR 31.14 request has been forthcoming.

 

6. On 11th September 2015, the claimants solicitors Howard Cohen and Co, wrote again providing documents for filing (Exhibit C). These documents include a copy of the account application form in April 2003 and a reconstituted transaction summary of the account. The letter wrongly states it is a copy of a credit card agreement. The application form fails to mention any overdraft facility which would not have come into effect until September 2005 when I started higher education and this became a student account. The transaction summary contains a reference to a Payment Received, amounting to £30, with a transaction date of 20th April 2009 to 8th May 2015. No further information is given.

 

7. My only reference for default on this account is a copy of my credit report which says the account was defaulted on 11th April 2009 (Exhibit D), as I did not receive notice of termination from the original creditor.

 

8. I have not made payments to this account, and cannot understand how if the account was defaulted and subsequently closed, how payments to it can be made at later dates.

 

9. Furthermore, no information has been clearly given on the transaction summary, or by the claimant as to how this payment was made, by whom, to whom and on what date.

 

10. On 24th September 2014 the claimants solicitors Howard Cohen and Co wrote to me (Exhibit E) saying that following the mediation appointment held on 18th September 2015, they have as requested queried the payment in question from 20th April 2015 to 8th May 2010. They say that Santander confirm the payments are from when the account was referred out to the debt collection agencies in the name of Credit Security and Debt Managers Ltd, and that they contend the claim is not statute barred.

 

11. Again, no proof of payment has been provided by the claimant or their solicitors. I have no knowledge of these debt collection agencies. No information has been provided to explain how and why the transaction summary in Exhibit C shows payment received amounting to £30 with a thirteen month transaction date is two payments to debt collection agencies that are not mentioned on the transaction summary, nor is there any information on when a payment was made and to whom and for what amount.

 

12. Therefore I believe the debt to be statute barred and the claimant has failed to prove otherwise.

 

 

Statement of Truth

 

I, xxxx, the Defendant, believe the facts stated within this Witness Statement to be true.

 

 

Signed: ________________________________

 

Dated:

[J2005]

Just wondering if anyone had any thoughts/comments on my witness statement? I need to send it Monday you see.