Hoist/cohen claimform - old Barclaycard 'debt'

[winty67]

Name of the Claimant ? Hoist Portfolio Holding 2 Ltd

Date of issue – 01 March 2016

what is the claim for –

 

 

1.Claim for the sum of £7015.01 in respect of monies owing under an agreement

with account no >>>>>> persuant to the Consumer credit act 1974.

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 persuant to s.87(1) CCA.

 

3.The Claimant claims

1. The sum of £7017.01

2. Interest persuant to s69 of the County Court Act 1984 at a rate of 8.00 percent

from the 11/04/12 to the date hereof 1416 is the sum of £2177.10

3. Future interest accruing at the daily rate of £1.54

4. Costs

 

What is the value of the claim? total £9702.11

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Credit Card

When did you enter into the original agreement before or after 2007? Before

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. Assigned

Were you aware the account had been assigned – did you receive a Notice of Assignment? Not sure

Did you receive a Default Notice from the original creditor? Not sure

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Dont think so

Why did you cease payments? Divorce and lack of funds

What was the date of your last payment? Not sure June 2010

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor

and make any attempt to enter into plan? No

I have filed my acknowledgement of service (10/03/16)

and sent a CCA request to Hoist and a CPR 31.14 request to Howard Cohen,

no response to either yet (received 18 and 17th March respectively).

 

 

I am hoping fo some help in filing a defence which needs to be by 2 April 2016,

I think.

Thanks in anticipation

[AndyOrch]

Hi winty67 and Welcome to CAG

 

You appear to have a good grasp of the process and many thanks for completing the above link.

 

2nd April is a Saturday...any defences submitted over the weekend will only be processed on the following Monday...so submit it before the weekend thurs/fri.

 

The only other advice I would offer is to check the history of this debt on your CRA,s if not already.

 

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? No

 

What type of debt is it ?

 

 

Regards

 

Andy

[winty67]

Thanks for the reply Andy, Its a Barclaycard Credit card debt.

[AndyOrch]

Thanks for the reply Andy, Its a Barclaycard Credit card debt.

 

Fine have amended your first post.

[winty67]

Thanks.

Should I post a defence here for your review, prior to receiving any replies from Hoist or Cohen?

[AndyOrch]

Thanks.

Should I post a defence here for your review, prior to receiving any replies from Hoist or Cohen?

 

It would be advisable

[winty67]

I have received today a letter from Robinson Way ackowledging receipt of my request under sections 77-79 of CCA.

 

They say my account is now with `our clients solicitor 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 solicitor Howard Cohen & Co as part of this process, therefore please find enclosed your £1.00 fee (postal order enclosed).

What does this mean?

 

Searched my credit file through Experian today and nothing from Hoist or Robinson Way,

only default notice from MKDP LLP stating default 11/04/2012

balance£7... (ex Barclaycard)

 

Is this normal?

[martin2006]

mkdp were bought by Hoist so now its hoist whi own the debt, RW collect on hoists behalf

Edited March 23, 2016 by martin2006

[winty67]

Thanks, does this mean Howard Cohen will comply to the CCA request without payment?

[martin2006]

Did you read the cpr31:14? It request ALL dicuments on which they rely, including any credit agreements and no you dont have to pay specifically but the letter dies state that you undertake to civer reasonabke copying costs

[winty67]

Yes thanks Martin, so guess I should get some communication from Howard Cohen shortly as they received my request on 17th March.

[martin2006]

If they have documents but they will no doubt hang onto anything they have until they have to send them under cpr guidelines, for you now, its about making sure you dont miss your defense filing date

[AndyOrch]

I have received today a letter from Robinson Way ackowledging receipt of my request under sections 77-79 of CCA.

They say my account is now with `our clients solicitor Howard Cohen & Co and they have issued a county court claim against you.`

` As you have filed yur defence in this matter, all documents will be requested by our clients solicitor Howard Cohen & Co as part of this process, therefore please find enclosed your £1.00 fee (postal order enclosed).

What does this mean?

 

Yes this appears to be a new ploy by this claimant (seen it on a few threads) as a way of avoiding it duties to comply with your legal request.Claims and defences are irrelevant to your request.

 

Therefore they have rejected your request.....send it again to Hoist Portfolio...attach a copy of the above to the request.

 

You must put them in default of the section 78 request..they must accept payment...to be legally valid. A CPR does not do this...its a civil request and they are not obliged to respond...and apart from that you will never get a copy of the agreement via a CPR 31.14 request.

 

Andy

[winty67]

Should I send a copy of the original request as well as a new request with the letter from Robinson Way?

[AndyOrch]

Should I send a copy of the original request as well as a new request with the letter from Robinson Way?

 

Yes and payment

[winty67]

Have they not failed to comply with my request and therefore section 78 (6) a should apply and they cannot therefore enforce the agreement

[AndyOrch]

Have they not failed to comply with my request and therefore section 78 (6) a should apply and they cannot therefore enforce the agreement

 

No because they have returned the fee......the request is not legally binding unless they accept payment

[winty67]

So can this happen repeatedly and they will not be required to supply any information but just keep returning the fee yet still make a county court claim, this cant be correct surely as it would then be win win for them.

Your comments Andy, thanks

[AndyOrch]

If they return the request/fee again..then you can detail this within your defence and highlight their actions to the court...and treat it as none compliance.Its not ideal as this does not place the claimant in default of the request for the reasons I have already stated.

 

After this stage the court will most probably ordered full disclosure of the agreement anyway (should the claimant wish to proceed) so they cant avoid it either way.

 

The only effect it has is that you cant state within your defence " the claimant is in default of my request pursuant to section 77/78 and is therefore not permitted to enforce or request relief of the alleged agreement".....but you can state that the claimant has continually refused to comply with my request by returning the statutory fee in an attempt to frustrate and avoid its legal responsibilities with this request and I therefore request that the court direct their compliance in this matter "

 

So its swings and roundabouts...they either comply with you or the District Judge...if they wish to proceed past the defence stage.

[winty67]

Thanks Andy, will post again today, but will take it outside my defence as that needs to filed next Friday 1st

[AndyOrch]

Dont worry about the time frame...you have made the request...they have yet to comply

[winty67]

ok thanks have a good weekend

[winty67]

Does this look ok for my defence? Need to file on Friday or before, still no correspondence from Hoist or Cohen thanks

 

In the County Court Business Centre

[/url]

Claim number ...........

Between

Hoist Portfolio Holding 2 Ltd- Claimant

 

and

 

Winty67 - Defendant

 

DEFENCE

 

1) The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedure Rules.

 

2) No documents supporting the claim in the particulars have been offered nor have any dates of agreement or account numbers been stated which the defendant needs to establish what agreement it is that this action is based upon and so the claimant's claim appears without merit.

 

3) As a result, the claim as pleaded does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I have made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow me to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

4) It is Not admitted that I signed any agreement with Barclaycard . If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

5) It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the

consumer credit

Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As I do not have a copy of the said agreement the Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

 

6) It is averred that before Proceedings may be commenced the Claimant or MKDP LLP/Barclaycard must have served myself with a valid Default Notice complying with the provisions of Sections 87 and 88 of the Act and the Regulations made subsequent to that Act.

 

7) It is not admitted that any valid Default Notice was ever served upon me and the Claimant is put to strict proof.

 

8 ) It is not admitted that any alleged agreement was lawfully assigned to the Claimant. The Claimant is put to strict proof that such a lawful assignment took place. Without this proof, the Claimant has no standing before the court.

 

9) If, which is not admitted, a lawful assignment to the Claimant did occur it is denied that sufficient notice as required by the Law of Property Act 1925 was served upon myself. The Claimant is put to strict proof as to the content and the manner of service of the alleged notice.

10) Further and in the alternative if, which is not admitted, an enforceable agreement is in existence, it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sum claimed has been calculated and as to how the sum claimed is lawfully owing.

11) Further, it is denied that any alleged contractual account charges and any interest applied thereon which make up any part of the sum claimed are lawfully owing in that it is averred that these sums would have been claimed pursuant to an unfair contract term and in addition are in breach of the general law.

 

12) It is averred that any account charges that are claimed are in breach of the common law in that they are a penalty and that they do not reflect any actual loss or the true extent of any costs incurred by the Claimant and are therefore void.

 

13) Further and in any event it is averred that any clause of the alleged agreement under which the account charges are claimed is an Unfair Term contrary to The

Unfair terms

in Consumer Contracts Regulations 1999 and, by virtue of Regulation 8(2), "shall not be binding on the consumer". Any such contractual terms are therefore void

14) In any event and pursuant to the County Courts (Interest on Judgement Debts) Order 1991 the claim for interest pursuant to Section 69 of The County Courts Act 1984 is denied.

15) Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed.

 

16) Without admission that any cause of action is shown by the Claimant it is denied that I am indebted to the Claimant as alleged or at all.

 

 

Statement of Truth

I believe that the facts stated in this defence are true.

 

Signed

[AndyOrch]

Nice witness statement...inappropriate for a defence.

 

Time to read other threads in the Legal Success forum Winty.

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-Legal-Successes

 

Andy

[winty67]

Ok thanks, thought that was a defence! cheers