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

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Response from HPH2 via Robinson Way for the CCA request, they've returned my £1 postal order stating the following:

" We acknowledge receipt of your request under sections 77-79 of the consumer credit act. Your account is now with our clients solicitors Howard Cohen & Co and they have issued a County Court claim against you. As you have filed your defence in this matter, all documents will be requested by our clients solicitors Howard Cohen & CO as part of this process, therefore please find enclosed your £1.00 fee."

 

On the same day I also sent a CPR31.14 request to the solicitor, I've not heard back from them.

 

I've acknowleged with the courts that I will make a defence but as yet done nothing more than send the CPR and CCA request.

 

I guess I just wait for a response from Choens?

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They are basically refusing to comply because they state as this is now matter of a court claim they will be providing copies of all documentation irrespective of your request at the relevant part of the procedure.......sounds very legal and technical.....its not its still a failure to comply so that goes in your defence....along with the CPR31.14..as I doubt you will get a comply for that either.

 

Keep an eye on your defence date and start reading around on how to draft it.

 

Andy


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Hi guys,

 

It's been 13 days since I sent the CPR 31:14 request to cohens (no response) and CCA to Hoist Portfolio. Host responded stating the issue is with Cohens.

 

A summary of everything so far,

 

 

  • Last time I used the BarclayCard: Sep 2009, (used for business, ltd company went into administration, card in my name)
  • Last payment to BarclayCard was the 5th Oct 2009
  • Default notice served 24th May 2010
  • Default stated on Equifax 29th July 2010
  • Claim received from Hoist 29th Feb 2016
  • Particulars on claim use the wrong default date and state interest is calculated to the year 2035
  • Total of claim is £16765.15 - most of which is charges and interest
  • Defence date 1st April 2016

 

What is the best way forward in your opinion to present a defence, when and how do I do it, is that online or do I show up in court, can't afford the train ticket to Nottingham to be fair.

 

Will I have to declare my income and expences? I have a war and military disability pension totalling less than £550 a month and that's it, I own nothing, live in a rented / shared house with a few guys, there are no assets to take, nothing and I'm giving them nothing as well, even if I lose, I'm going down fighting.

 

any advice is very much appreciated.

 

Thank you

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time to go read like threads here WW.

 

 

you'll prob be filing the no paperwork/holding def

copy and paste your POC above into the search cag box of the red toolbar and read.

 

 

defence is not due till /by 4pm 1st april

 

 

dx


please don't hit Quote...just type we know what we said earlier..

 

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What are your thoughts on the defence I wrote guys, it's taken me a few days, I'm definitely no lawyer in the making.

 

Do I wait until the last minute or submit online as soon as its ready?

 

Comments gratefully received.....

 

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

 

Defendants Summary

1. The Claimants claim form is lacking detail and fails to adequately set out the nature of the Claim, the Defendant has lawfully acted to provide clarity to the claim and these requests have been ignored by the Claimant, the Defendant therefore declares that the Claimants pleadings are an abuse of process.

 

 

The Claim

 

2. The defendant received the claim from the County Court Business Centre, Northampton on the “date”, number “claim no”

 

3. The Claimant states that the claim is for a xxxxxx Credit Card agreement with account no xxxxxxxxxx regulated under the Consumer Credit Act 1974 and defendant has failed to make contractual payments under the terms of the agreement.

 

4. The defendant holds financial records dating back 6 years and a xxxxxxxxxxx agreement cannot be identified within these records. The Defendant requires the Claimant to provide documentary evidence of the existence of the agreement that this claim specifically relates to.

 

5. The claimant has stated within the particulars of the claim, that the debt was legally assigned by xxxxxxxxxx to the Claimant and notice has been served.

 

6. As stated, the defendant holds financial records dating back 6 years, no records can be located and therefore the claimant must provide documentary evidence to support this claim.

 

7. The claimant has stated within the particulars of the claim. That a default notice has been served up on the defendant pursuant to s.81(1) CCA.

 

8. The Defendant has sighted a default notice from xxxxx acting as agents for CreditCardCo. But information within the notice does not match this claim. Therefore, further documentary evidence is required from the Claimant in order to provide further clarity to these anomalies and this claim.

 

9. The particulars of claim state that “Interest pursuant to s69 of the country court act 1984 at a rate of 8 percent from the “data” to the date hereof 2035 is the sum of £xxxxxx

 

10. The defendant requires further documentary proof that these dates are valid, and clarification on what the date 2035 is related to, this is causing yet more confusion to this case and putting further into doubt, the validity of this claim.

 

11. Therefore, on the “date”, in order to bring clarity to the claim the Defendant sent “recorded delivery” requests for information to the Claimant. The request was made pursuant to s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under and to obtain further information about the terms of the contract and request further documentary evidence of the rest of particulars of the claim.

 

12. The Claimants representative, “agents name” acknowledged receipt of the request on the “date” returning the fee and stating, “Your account is now with our client’s solicitor, Cohen & Co and they have issued a County Court Claim against you.

 

13. As you have filed your defence in this matter, all documents will be requested by our client’s solicitor Cohn & Co as part of this process”, the claimant, still failed to disclose any documents relating to their claim to the Defendant.

 

14. Accordingly, the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

 

15. By reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim, in this instance, the defendant received no documents to support the claim.

 

16. Therefore, in response to the correspondence from the Claimants representative, “agents name”, the Defendant has sent a second “recorded delivery” request for information to the Claimants solicitor Cohen & Co. in order to request inspection of documents specifically related to the particulars of Claim as is allowed under CPR 31.14.

 

17. The Claimants, nor their representatives, have replied to this correspondence, the claimant, has still failed to disclose any documents relating to their claim and Defendant is therefore prejudiced.

 

18. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out

 

Conclusion

 

Accordingly, the Defendant states that

 

19. The Claimants statement of case fails to give adequate and coherent information to enable the Defendant to properly assess the claim and present a credible defence

 

20. The Claimant has not complied with s78 of the Consumer Credit Act 1974 and therefore cannot enforce the agreement.

 

21. The Defendant requests the court orders the Claimants to provide the necessary documentation in order for the Defendant to provide a credible defence.

 

22. In the event that the relevant documents are received from the Claimants, the Defendant will be in a position to amend the defence, and would ask that the Claimants bear the future costs of the amendment.

 

23. Should, the Claimants fail to submit the required documentary evidence, the Defendant requests that the Claim should be dismissed and the Claimant pay the Defendants costs.

 

 

Statement of Truth

The Defendant believes that the facts stated in this Defence are true

 

Signed

Dated

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erm that's not from here

and far too much for a very vague poc they give

 

 

andy will help by the time you need it - see post 16


please don't hit Quote...just type we know what we said earlier..

 

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Ok thank you, I look forward to Andy's reply.... still heard nothing so assuming they aren't sending anything. Incidentally, I've asked for information twice a year ago and a year before that, it wasn't a CCA but they still were unable to provide anything other than a screenshot.

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Defence due 1st April...give me nudge 3/4 days before Wandsworth.

 

Andy


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No worries, I was under the impression we had to reply soon in order to get a response from them before the court date, it's in my interest to leave it last minute then?

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Well you have 33 days in total...so may as well make use of it....there's no rush...and as stated you require a unique statute barred defence...not the norm.


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Ok cool, so its better to go for the SB rather than a failure to comply with both the CCA and CPR. The longer the better really as I found that the Equifax default date is wrong and its actually in May, so whether its the default date or point of action, the SB is a little more credible.

 

thank you for your help.... been freaking out a bit, which is I guess what they want, I'm guessing they don't have the agreement either.

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If we can make sure its statue barred...the rest is irrelevant.


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HI Andy,

 

D-day is approaching, how best do you feel we approach SB as a means for the defence ? As you say, if we can prove SB, all the rest is irrelevant.

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Hi Wandsworth2015

 

You are on my to do list...if I have not posted by Wednesday give me a further bump:-)

 

Andy


We could do with some help from you.

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 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

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many thanks Andy, I'd offer my assistance but after my last effort, I'm pretty sure I wouldn't give you much help.

 

very kind

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Particulars of Claim.

 

Date of Issue 29th Feb 2016

 

1.The claim is for the sum of £11,028 in respect of monies owed under an agreement with the account no. 4929… (16 digit ref) 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 £11028.

2. Interest pursuant to s69 of the country court act 1984 at a rate of 8 percent from the 29/07/2010 to the date hereof 2035 is the sum of £ 4919 -

 

3. Future interest accruing at the daily rate of £2.42

 

4. Costs

 

######Defence######

 

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 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.

 

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


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See above :-)


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Thank you, so I simply go online and post that into the defence and that's it, we wait on the result?

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Well not quite..the claimant has 33 days to respond and signify if they wish to proceed or challenge your defence..if they fail to respond the claim is stayed.

 

If they do respond then the claim is transferred for allocation to your local county court.


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I'm guessing if they don't have any paperwork either, they'll be unlikely to want to pursue it through the local county court, all submitted now, a great relief to get that done, focussed on a stay of proceedings now.

 

thank you Andy and all others who helped along the way, very kind of you all.

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Defence does not challenge them on documents or disclosure...its purely a statute barred defence.


We could do with some help from you.

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Hi guys,

 

Today received a "Notice of Proposed Allocation to the Fast Track" including a N180 form stating

 

TAKE NOTICE THAT

 

1. This is now a defended claim.

 

the defendant has filed a defence, a copy of which is enclosed (this is crossed out with a pen and there is no paperwork, I thought I was the defendant?)

 

I appear to have the option to settle in some form of mediation or press on to defend, which I cannot see any other option but defend.

 

Any thoughts, lots of this form make no sense, has the claimant responded ?

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Yes that's normal...the claimant has informed the court they wish to proceed.....It should be the N181 though if the claim is Fast Track.


We could do with some help from you.

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I've got a photocopied form call the N180 (small claims track) , claims for less than £10,000 this appears to be incorrect?

 

The covering letter states the I must file form N181 by June 3 2016 on why its not the appropriate track for the claim, file to the court and all parties.

 

Not confusing at all :-)

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