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

[catquest]

Barclays had a habit of sending default notices from Mercers like confetti without actually meaning to enforce them. They try desperately to come to a payment arrangement. When this fails, they sell the account and only then do they report it as defaulted with CRAs.

[Wandsworth2015]

Please review the defense, let me know your thoughts on the logical flow and if it makes legal sense?

 

In the County Court at CLAIM NO

 

BETWEEN:

Hoist Portfolio Holding 2 LTD, Claimant

-and-

, 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 within 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. The administration company was Bond Partners Llp.

3. The administrators of the limited company, advised me to place all personal debts related with the limited company into a debt management company, Momentum Networks Ltd.

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

5. Barclays were informed on the 5th Nov 2009 that Momentum Networks Ltd were now managing the debt and understood that the agreement would be in default and terminated within 3 months of the first missed payment on the 5th Nov 2009.

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

7. I have 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.

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 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.

[catquest]

You said earlier the default notice was issued 7th May. I assume 24th May is the date by which you had to rectify the breach ? ( usually 17 days later to allow for service )

[Wandsworth2015]

Yes, that is correct. I've never seen the original DN, I have a digital copy that was emailed to me by a debt collection agency. But these are the correct dates, they've never requested full payment even via the collection agencies.

 

I've updated the statement to make it flow better.... less waffle as I'm learning from Andy.

 

As I have virtually nothing that is original in terms of paperwork, I'm thinking of providing nothing but this witness statement, what are the general thoughts on this'?

 

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 within 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. The administration company was Bond Partners Llp.

3. Due to my personal financial circumstances, the administrators of the limited company, advised me to place all personal debts into a debt management company, Momentum Networks Ltd.

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

5. Barclays were informed on the 5th Nov 2009 that Momentum Networks Ltd were now managing the debt and understood that the agreement would be in default and terminated.

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

7. I have 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.

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 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

[mercyblue]

Momentum Networks Ltd.?

Would that be this company https://www.companiesintheuk.co.uk/ltd/momentum-network

 

I hope not as that was run by the Rankine's.

[Wandsworth2015]

Yes it was.

 

 

Bond Partners insolvency firm went bust and their directors found guilty of negligence and fraud,

there will thousands of businesses they defrauded,

including mine during the global crash

and they recommended (after I paid them) Monument,

 

 

I was contacted by Trading standards to give a statement against them,

I was duped professionally and personally and I've managed to recover from it.

 

http://www.insolvencynews.com/article/13295/industry/insolvency-firm-collapses-due-to-significant-claims

[Guest]

Actually I would agree with that statement Ford!! ........

 

are you sure that you agree with Ford

i maintain that the cause is the breach complained of.

 

 

a dn (if applicable) being a procedural/admin step in the recovery process which starts with the breach (cause).

the breach (failure to make payments) being the cause mentioned in their particulars.

 

my further point

there was that if a J takes things from a dn then,

as andy points,

that defeats things as a dn issue is under the control of a creditor to issue when they like.

 

 

a crud cld for eg issue a dn 2 years later, and so extend limitation to 8 yrs. if that all makes sense.

 

ideally, if thats to be the case, a dn wld be issued after the first missed payment to coincide.

 

in one of mine for eg, after a missed payment

a reminder was sent to pay in x days. after expiry of that a dn was issued.

 

anyway, i wont post further as W needs attention re the WS.

[Wandsworth2015]

Hi guys, if Hoist is unable to produce a copy of the agreement and Default notice, is the case even enforceable ? I've yet to see an agreement from anyone?

 

p.s. if they cannot produce a DN then the breach will be extended from 6 years 6 months to 6 years and 9 months, either way SB.

[martin2006]

No they cannot enforce an agreement if they do not have said agreement. It would follow that there would be no DN either if there is no agreement to enforce.

[Wandsworth2015]

Thanks Martin, do I need to include that point in the witness statement and if so what wording is needed? At present, they've yet to prove there is even a claim against me.

[martin2006]

No because your defence is one of SB. That should kill it dead.

[dx100uk]

[mercyblue]

No because your defence is one of SB. That should kill it dead.

 

I had started writing a a fairly long reply as to why that would be a bad idea when martin posted this. So instead will add just a bit.

 

If you think you have a valid defence stick to it, don't turn it into some sort of tickbox exercise of well A hasn't worked so I'll move onto B if that doesn't work I will go for C etc a judge would see right through that

In any case how could an unenforceable agreement be SB in any case - there is nothing to SB

[martin2006]

That did cross my mind MB

[catquest]

Did you ever make a formal request under s77/78 paying the £ 1 fee ? Remember lack of the original signed agreement does not make it unenforceable but they have to come up with a true copy of your agreement.

[martin2006]

The agreement and DN are irrelevant as the defence is one of SB'd

[shamrocker]

The agreement and DN are irrelevant as the defence is one of SB'd

 

And if the DJ doesn't agree on the SB defence?

[martin2006]

As with any other case sham, if the DJ doesnt agree its SB, the OP loses, his defence is purely based on it being SB

[catquest]

This is total nonsense - a defence should be based on every possible angle - the judge and barristers will then agree on which is the most important part and start with that. There are blogs by one of the most successful lawyers in consumer credit law and you will see that in almost all cases there are multiple issues entered into the defence.

[Wandsworth2015]

Yes I sent a CCA and CPR request to both the claimant and the solicitors including a £1 postal order, I wanted to establish the validity of the claim and actual dates of the agreement and subsequent DN, I had two Barclays accounts and had no way of knowing which was which or if this was even valid.

 

My defence is SB, but the current claim reports that the default date is the end of July, which would mean an extension of 6 years 9 months, this is part of my SB defence is it not?

 

There is also no proof that this is my account, there is no correlation to the actual Barclay account, my only source of information other than the claim, is the Equifax file. The Barclay account has been deleted as its past 6 years (May 2010 default), Hoist have a different default date and refused to change it, which would indicate that potentially they don't have the correct paper work, either way its deleted from the CRA next week anyway.

 

I have one question:

 

I and the claimant are submitting my witness statement and supporting evidence this week ( i have nothing but the claim, CRA data and the correspondence). Lets assume the claimant produces no agreement and or supporting DN.

 

Will this immediately stop the case? If not, surely I need this as part of my defence as an SB couldn't be brought against an agreement that didn't exist?

 

chicken and egg scenario.

[mercyblue]

This is total nonsense - a defence should be based on every possible angle - the judge and barristers will then agree on which is the most important part and start with that. There are blogs by one of the most successful lawyers in consumer credit law and you will see that in almost all cases there are multiple issues entered into the defence.

 

That would be true in a major case such as Carey vs hsbc etc where multiple barristers were involved what we have here is case likely to be run by a deputy district judge without any barristers present (unless the claimant sends one the op wants to hope that isn't the case.

 

 

Usually the claimants solicitor will approach the LiP while they are waiting to go into court to try and agree on the issues whether the LiP agrees is up to them

- I imagine a lot will think the other side is trying to pull a fast one unless they have previous court experience.

 

The first time either side will speak with the judge is once they are in the courtroom.

 

 

Lets say a fast track trial is listed for a 3 hour window are you going to spend the 1st hour debating what is the most important issue. Or are you saying there should be a pre-trial case management meeting to decide the important issues

- something I would very much doubt nothing in the directions about it

[mercyblue]

"I and the claimant are submitting my witness statement and supporting evidence this week ( i have nothing but the claim, CRA data and the correspondence). Lets assume the claimant produces no agreement and or supporting DN.

 

Will this immediately stop the case? If not, surely I need this as part of my defence as an SB couldn't be brought against an agreement that didn't exist?"

 

So you are saying now there never was an agreement?

[catquest]

The lack of a response to s78 request is a vital part of the defence.

In my experience of Barclays SARs they have all the data ie statement copies and copies of default notices from Mercers.

They will also know the start date of the agreement . For the purposes of their claim they could provide a reconstituted copy of the agreement.

The difference in default date between Hoist and Barclays is familiar, not sure how Hoist choose that date, Barclays choose the date of sale. Incidentally I also noticed from SARs that Barclays inform Hoist that an account is "s78 unenforceable"

 

Did you never get the letters from Hoist saying " we are still trying to get a copy of your agreement " ?

[martin2006]

Whether or not any agreement is enforceable or otherwise is now irrelevant so ther is little point debating it here, WW has submitted his SB defence and he must rely on that, bringing anything else to debate now is pointless on this thread.

Whilst there is no issue with discussing the points raised, it should be done on a new thread to avoid confusing the OP.

The OP is using SB as his defence, end of.

[catquest]

Yes indeed, but if they have no agreement especially if asked for under s78, then it's unenforceable and I am sure the defence could be amended on that point if necessary, this is highly technical though