HPH2/Cohen Claim Form - 2007 Morgan Stanley Barclaycard 'debt'

[AndyOrch]

You need to change the intro as this is in addition to your witness statement dated xxxxxx you wish to submit further evidence by way of this supplemental witness statement.

[SFK1981]

Thank, Andy. Statement amended to the below:

 

IN THE county court ofxxxx CLAIM NO: xxxxx

 

BETWEEN:

HOIST PORTFOLIO HOLDING 2 LTD Claimant

 

-and-

 

MR xxxx Defendant

 

SUPPLEMENTARY WITNESS STATEMENT OF MRxxx of xxxxxxx ROAD, XXXXXX

 

I, Mr XXXX the Defendant in this claim wish to submit further evidence, in addition to my witness statement dated XXXXXX, by way of this supplemental witness statement. I make this statement believing it to be true will state as follows:-

 

1. I challenge the Claimant's Exhibit (XXX1) (referred to as the 'Agreement') as it is clearly in breach of s.61 of the consumer credit Act 1974 thus - signing of the agreement, as it does not contain a signatureicon for the debtor and creditor, nor does it contain the prescribed terms from Morgan Stanley. Therefore, it is improperly executed.

 

2. Section 65 of the Consumer Credit Act states that "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only." but the Court's discretion to determine the enforceability of pre-April 2007 agreements is removed by virtue of s.127(3).

 

3. It is denied that a default notice pursuant to s87 and s88 of the Consumer Credit Act 1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default as per the court's directions. A valid Default Notice is a strict requirement before enforcement action can be taken following a breach of a regulated agreement. Whilst the Claimant states that one was issued, and has disclosed a "reconstituted" version from their system, they have not evidenced that one was actually issued following the alleged default and thus complied with the terms of the Consumer Credit Act 1978. The Claimant is prevented from taking enforcement action until a valid Default Notice has been issued.

 

4. Until the claimant supports with evidence their claim that the Agreement meets the criteria necessary for the Court to have discretion with respect to its enforceability, their assertion of compliance with s.78 being sufficient grounds for enforceability should be denied. On the basis of the above, I request that the Court rejects the Claimant's claim.

 

6. As per CPR 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7. On the alternative, as the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

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

[AndyOrch]