Hoist Portfolio 2/? claimform - old Barclaycard 'debt' ***Claim Still Struck Out ***

[AndyOrch]

A witness statement is done after a defence...not at the same time...you are the witness to your own defence...you don't submit it until after allocation...you submit now as per the court's directions.

 

[mercyblue]

"3.The Default Noticed was issued 24th May 2010 and served several months after the initial breach

thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months

which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run."

I'm actually relying on the claimant providing me with a signed agreement and valid default notice, the above is all I have.

 

You are going to need a carefully worded WS or you could end up torpedoing your own defence.

 

 

Using the last payment date as the sb start date (my view that's fundamentally flawed is no secret)

so the validity, date of a DN or even if one was issued becomes irrelevant.

 

If you harp on about DN's and their validity,

a different date on the DN to the one on the claim etc

you're running the risk of agreeing with what will be the claimants position

that a DN is required before court action can commence.

 

The first thing I would try to do in court is to try to get you to accept on the need for a DN before a claim could be brought.

 

 

So I would go through your WS for any mention of DN's and highlight them to the judge

to show that you agree on the need for a DN otherwise why would you bother to mention it.

 

Hopefully you can see where I am going here wandsworth

[Wandsworth2015]

thanks guys. My witness statement for defence will be based on SB from the last date of payment. I'm researching the format as I have never had to do this.

 

I have nothing else to send the court to rely on, but my witness statement, I'm placing everything into the hands of the claimant to prove they have a case to bring in the first place.

[AndyOrch]

thanks guys. My witness statement for defence will be based on SB from the last date of payment. I'm researching the format as I have never had to do this.

 

I have nothing else to send the court to rely on, but my witness statement, I'm placing everything into the hands of the claimant to prove they have a case to bring in the first place.

 

Thats fine...you wont or shouldn't have anything to disclose on a SB pleaded defence...apart from the WS itself.

[Wandsworth2015]

So I add the following to the witness statement or does it require any "human" element from me?

 

1 The Claimant's claim was issued on 29th february 2016.

2.The date last payment made was the 5th Oct 2009 used for business, LTD company which is in administration.

3.The Default Noticed was issued 24th May 2010 and served several months after the initial breach thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

4.Therefore the Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation acticon 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

5.The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied

 

I noted that the following points need to be achieved for SB to be valid, what does acknowledging the debt mean?

 

I've written to the creditors in 2010 disputing the debt and stating that litigation was the best course of action to resolve it. Again March 2015 requesting a copy of the agreement and DN, they sent me a screen shot of an account which made little sense and a last simple statement of payments, which confirmed the last payment was Oct 2009.

 

The debt will be statute barred if you, someone representing you, or someone else you held the account with (eg your partner) haven’t:

made a payment in the last 6 years

written to the creditor acknowledging that you owe them money in the last 6 years

had a county court judgement (CCJ) against you for the debt in the last 6 years

[AndyOrch]

Dont forget to add the headers and a statement of truth ...dated.

[Wandsworth2015]

Yes, I've found a template on the website.... about my other comment.

 

Can responding to the creditors communications "reset" the SB clock?

[AndyOrch]

Yes, I've found a template on the website.... about my other comment.

 

Can responding to the creditors communications "reset" the SB clock?

 

No not unless payment has been made or written acknowledgment only ...requesting information is not an acknowledgement

[Wandsworth2015]

Ok thanks, I'm adding the mitigating circumstances to my statement now and will post without personal details here afterwards for review.

[AndyOrch]

[Wandsworth2015]

This is pretty much my entire "story" it is the facts in chronological order, nto sure admitting I was conned is the best plan, but here it is.

 

The only additional information I can provide, is a copy of the DN, (not original) and a typed statement showing the last payment, its not a real statement, I could of knocked it up on my pc.[/

 

 

 

 

In the County Court Case:

 

Parties: Hoist Portfolio Holding 2 LTD Claimant

Defendant

 

Witness Statement - Defendant

 

1. I, , live at. I am the defendant in this claim and unless otherwise indicated, this statement is from my own knowledge. Where I state matters of information, I will provide a source for that information or belief, where available. This statement has been created chronologically.

 

2. I founded a limited company in 2002. Due to the global financial crisis, the business lost a significant client in Jan 2009 and I made the difficult decision to place the company into administration in 2009.

 

3. I had obtained credit in the form of a loan and credit cards to support the activities of the business between 2004 and 2007.

 

4. The administrator of the limited company was Bond Partners Llp and the practitioner Mr….

 

5. I reassigned as a director of the limited company September 2009 and my salary ceased.

 

6. Mr P advised me that any personal debts related to the business, should be managed by debt company. He advised me to use Momentum Network Limited, a lump sum was paid to Momentum Network Limited and all further creditor correspondence forwarded to them.

 

7. During early 2015 I discovered that directors of both Bond Partners Llp and Moment Network had been found guilty to multiple cases of personal and company fraud.

 

8. March 2015 I started to receive debt chasing letters from MKDP with reference to a Barclaycard account and I responded to them requesting proof of documentation.

 

9. MKDP were unable to provide me with a copy of the default notice or a signed agreement. But presented me with a screen shot of an account and a printed copy statement, but no proof of any debt. The debt chasing continued.

 

10. 1st Oct 2015, I received a notice of assignment from the claimant

 

11. 29th February 2016, the Claimant's issued C5AL240M

 

12. 3rd March 2016, I requested copies of all documentation using a CCA request to the claimant, no documents received.

 

13. 3rd March 2016, I requested copies of all documentation using CPR 31.14 from the claimants’ solicitor, Howard Cohen and Co, no documents received.

 

14. In order to defend this case, I therefore made the assumption the agreement is valid and noted the last payment made, was the 5th Oct 2009

 

15. The Default Noticed was issued 24th May 2010 and served several months after the initial breach thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

 

16. Therefore, the Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

 

17. The Claimant's claim to be entitled to payment of £16,765.15 or any other sum, or relief of any kind is denied

 

18. I believe the facts stated in this witness statement are true.

[AndyOrch]

Here is a recent draft that I have done...post #98 give you a few extra points on layout and content.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?467294-Lowell-Lowell-sols-claimform-old-cat-debt-Urgent-Help-Court-Hearing-29-7/page5

[Wandsworth2015]

Was mine that bad

 

Ok start again tomorrow

[AndyOrch]

Not at all...but always good to look at others and pick up tips:wink:

[Wandsworth2015]

I've got them side by side and I'm working through it to get an idea of format and structure now, I'll have something for tomorrow.

 

thanks Andy

[Wandsworth2015]

What do you think Andy, cleaner?

 

In the County Court at CLAIM NO:

 

BETWEEN:

Hoist Portfolio Holding 2 LTD, Claimant

-and-

Mr, Defendant

 

WITNESS STATEMANT OF MR

I, , 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 two credit card accounts with Barclays in the past. One account was opened in 2007 and the other approximately 2005, both were used to facilitate business transactions with in a limited company I founded in 2002.

2. The limited company was placed into administration on 17th September 2009 and I resigned as a director on the same day.

3. The administrators of the limited company, advised me to place all personal debts related with the limited company into a debt management company, this was completed Nov 2009.

4. The last payment made to Barclays was Oct 2009.

5. The Claimant's issued XXXXXXXX on the 29th February 2016.

6. I had yet to receive a copy of the agreement and default notice, which I requested pursuant to CPR 31.14 on receipt of the claim, in order to clarify which account this was and to prove its validity.

7. In order to defend this case, I have made the assumption the agreement is valid and noted the last payment date made, was the 5th Oct 2009.

8. The Default Noticed was issued 24th May 2010 and served several months after the initial breach thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

9. Therefore, the Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

10. The Claimant's claim to be entitled to payment of £16,765.15 or any other sum, or relief of any kind is denied

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

Dated on the day ………………..2016

Edited July 22, 2016 by Andyorch
Removed reference number

[AndyOrch]

A lot more snappy and less rambling.

 

Well done.

[martin2006]

Blank out the claim number for anonymity wandsworth

[Wandsworth2015]

How do I edit a post?

[AndyOrch]

How do I edit a post?

 

I have done it for you

 

Andy

[Wandsworth2015]

Could you explain these two, their written in some legal language so its hard to understand it?

 

 

8. The Default Noticed was issued 24th May 2010 and served several months after the initial breach thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

9. Therefore, the Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation acticon 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

[martin2006]

The DN and SB have no relevance to each other.

 

The cause of the breach dates to the 1st missed payment, this is the breach and the cause.

The action is the issuing of the DN so you are arguing that it is SB on the grounds of the last payment made.

 

I cant see what the post number is as im on my phone but refer back to dx100uk post at 16:49 17th july for clarity

Edited July 22, 2016 by martin2006

[AndyOrch]

And that they decided to issue the DN late...7 months after breach rather than 2/3 months as per guidelines...therefore in reality they have stretched time from 6 years to 6/7months from the date of the initial breach.

 

Cant explain it in any simpler form

[Wandsworth2015]

Now I understand, so the guidelines are that a DN must be issued within 3 months of the last payment and if that's delayed, the "cause of issues" becomes the last payment and not the default notice provided after the three months period.

 

What guidelines are they, the consumer credit act?

[AndyOrch]

ICO (Information Commissioner Office) with regards to registering the default marker.

 

The CCA is rather more sketchy as to when it should be issued.

 

http://www.legislation.gov.uk/ukpga/1974/39/part/VII/crossheading/default-notices