HPH2/Cohen Claimform - Barclaycard ‘debt’***Claim Dismissed***

[The Other Snowdog]

Name of the Claimant ? Hoist Portfolio Holding 2 Ltd

Date of issue – . 01 March 2016

what is the claim for – the reason they have issued the claim?

 

 

1.Claim forr the sum of £7600 in respect of monies owing under an agreement

with account no 5301************ 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 £7600

2. Interest persuant to s69 of the county court Act 1984 at a rate of 8.00 percent

from the 27/04/11 to the date hereof 1765 is the sum of £2900

3. Future interest accruing at the daily rate of £1.67

4. Costs

What is the value of the claim? total £11100 (all figures rounded)

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? Don’t Think So

Did you receive a Default Notice from the original creditor? Don’t Think So

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

Why did you cease payments? Redundancy in 2006 but maintained payments until savings ran out in 2010,

then entered into a payment arrangement until I think 2011

What was the date of your last payment? Not sure, sometime in 2011

 

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? Yes

..................

I have filed my acknowledgement of service (07/03/16)

and sent a CCA Request to Hoist

and a CPR 31.14 request to Howard Cohen,

no response to either yet (received 9th and 8th March respectively).

I am hoping for some help in filing a defence which needs to be by 1st April 2016, I think.

 

I’m sorry if I seem to have left this late,

but I thought I had this all under control and was getting my defence ready today for submission later this week.

I was reading through the forums for advice on how best to word my defence

when I came across a post describing my exact experience,

which was the return of my postal order for £1, rejecting my CCA request,

stating the request had been passed on to Cohen’s solicitors who would respond in due course.

 

Whilst I wasn’t fooled by their granting of a 14 day extension to file my defence,

I still felt I had fulfilled my requirements to place Hoist in default under S.78.

 

Based on advice posted on the other thread,

I am now going to send another copy of the CCA request

with a copy the letter rejecting my original CCA request to Hoist and the payment.

In the other thread, the advice given was that it is no longer appropriate to state that

" 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",

and instead

the defence should be along the lines of 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 ".

Based on the info I have given below, would you think that this advice would apply to this case also?

 

Once again apologies for leaving it so late.

I have been caught out by this unexpected and underhand tactic.

 

Thanks in anticipation

 

[dx100uk]

all good and you are doing fine.

[The Other Snowdog]

Thank you, dx100uk, that is reassuring. Other than the part of the defence stated above, do you have any advice on how to word the rest of my defence? I have read on other posts that I should address each point on the claim individually, but I don't seem to be able to find those threads again for reference.

[dx100uk]

sure

 

 

https://cse.google.co.uk/cse?cx=partner-pub-0964707606882478:652l7hswbgv&ie=UTF-8&q=HPH2/Cohen+Claimform+-+Barclaycard+%3Fdebt%3F+&sa=Search+CAG#gsc.tab=0&gsc.q=HPH2%2FCohen%20Claimform%20-%20Barclaycard%20%3Fdebt%3F&gsc.page=1

[The Other Snowdog]

Thanks for the link, dx100uk. I have had a look for recent cases similar to mine and have come across the following. Would this seem ok to file as my defence?

 

Particulars of claim

 

1.Claim for the sum of £7600 in respect of monies owing under an agreement with account no 5301************ pursuant to the consumer credit act 1974.

 

2.The debt was legally assigned by MKDP LLP (Ex Barclaycard) to the Claimant and notice has been served.

 

3..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.

 

The Claimant claims

1. The sum of £7600

2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the 27/04/11 to the date hereof 1765 is the sum of £2900

3. Future interest accruing at the daily rate of £1.67

4. Costs

 

1 The Defendant contends that the particulars of claim are vague and generic in nature.

The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted. I have in the past had an agreement with Barclays but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification by way of a CPR 31.14 and section 78 request.

 

3. Paragraph 2 is denied. I am unaware of any legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1) from either the original creditor or MKDP LLP or HPH2.

 

4. Paragraph 3 is further denied. I do not recall ever receiving a Default Notice pursuant to s.87(1) CCA. or any advance notice or warning.

 

5. On receipt of this claim, I the Defendant sent a request under the customer credit Act 1974,by way of a section 78 for a copy of the agreement and payment of the statutory fee of £1.00. The claimant has refused to comply with my request by returning the statutory fee in an attempt to frustrate and avoid its legal responsibilities.However it is considered the claimant is and remains in default of its own volition.

 

A further request made via CPR 31.14, requesting disclosure of documents on which the Claimant is basing their claim .The claimant has not complied

 

A further request made via CPR 31.14, requesting disclosure of documents on which the Claimant is basing their claim .The claimant has not complied

 

6. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

a) show how the Defendant has entered into an agreement

b) show how the Defendant has reached the amount claimed for and

c) show the nature of the breach and evidence by way of a Default Notice pursuant to sec 88 CCA1974

d) show how the Claimant has the legal right, either under statute or equity to issue a claim

 

7. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed

 

8. On the alternative, as the Claimant is 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

 

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

 

One aspect that is causing me confusion is relating to point 5, the CCA request. Since Hoist have returned my fee of £1, is it correct that I cannot assert that they are in default? I have sent another request as suggested in another thread, but that was only sent yesterday so I will have had to submit my defence before the allowed time 12 + 2 days has expired. Should I use the "the claimant has refused

to comply with my request by returning the statutory fee in an attempt to frustrate and avoid its legal responsibilities with this request" wording, or stick to the 'client is in default' wording?

Edited March 30, 2016 by Andyorch
edited

[martin2006]

Yes you would need to amend that as they are not in default they are simply refusing to comply and frustrating the process

[The Other Snowdog]

OK, so point 5 will be amended...

 

5. On receipt of this claim, I the Defendant sent a request under the customer credit Act 1974,by way of a section 78 for a copy of the agreement and payment of the statutory fee of £1.00. The claimant has 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.

 

A further request made via CPR 31.14, requesting disclosure of documents on which the Claimant is basing their claim .The claimant has not complied

 

Does this now look ok?

[martin2006]

I think that looks ok but please wait for Andy to give it the ok

[AndyOrch]

Defence checked and amended.

 

Regards

 

Andy

[The Other Snowdog]

Thank you everyone for your help with this. It is much appreciated. I have now submitted my defence, so I will update as and when I hear anything further.

[The Other Snowdog]

Hello again.

 

 

Well, as stated I submitted my defence and all went quiet until

 

 

a few days ago

I received a notice of proposed allocation to the fast track.

Included was a directions questionnaire that I really can't make any sense of.

 

 

It has 9 questions, A to I, asking about

pre action protocols,

case management information,

expert witnesses, etc.

 

 

It seems to me that most of this is irrelevant in my case,

so could anyone shed any light on how I should deal with this?

 

 

It says on the covering letter that I should serve the completed questionnaire on all parties,

attempt to agree directions (?) with all other parties

and file proposed directions (whether or not agreed)

with the directions questionnaire by 3rd June.

 

 

I can scan and post on here if required.

[dx100uk]

you should have already seen this with the amount of threads you've read already

 

 

std procedure.

[AndyOrch]

" I can scan and post on here if required."

 

 

No need to we already have our own copy in the Legal Library....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406100-LEGAL-N181-Directions-Questionnair-(Fast-Track-Multi-Track)-**Correct-at-Sept-2015*

 

However...the claim should not be allocated to Fast Track as it is not over £10K

 

"3.The Claimant claims

 

1. The sum of £7600

 

2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent

from the 27/04/11 to the date hereof 1765 is the sum of £2900 "

 

Interest has yet to be awarded at the discretion of the court....standard tactic for every HPH2 claim I have seen..inflating the debt.

 

So you can either go with the inflated figure and complete the N181 ...will cost the claimant a fortune for the hearing fee or you can download the N180 a (Small Claims Track) and submit that instead.

 

Be aware if the claim gets into fast track.....costs can be horrendous for you the defendant.

 

Andy

[The Other Snowdog]

Thank you. I will complete form N180.

[The Other Snowdog]

I've downloaded a copy of form N180 and had a look through, it seems pretty straightforward.

 

 

However, looking at a similar thread to mine the advice there seemed to be to say yes to mediation.

Would you advise this in my case?

 

 

Also, when returning form N180,

the covering letter I received with form N181 says if I believe the fast track is not the appropriate track for this claim,

I must complete box D2 on form N181 and explain why.

 

 

Based on what andyorch said above,

would it be correct to say my reason is that the claim is not over £10k

because interest is yet to be awarded at the discretion of the court?

[AndyOrch]

Alternatively you could complete the N181 and state that the claim is not suitable/applicable for fast track for the reason stated and request it be allocated to small claims track.

 

Whichever you complete you always opt for mediation.

[The Other Snowdog]

I have found a thread relating to completion of form N181

and I will post on here my proposed responses before sending off copies to both the court and Hoist.

 

 

Regarding section A, Settlement,

should the answer to Q1, ‘...do you want to attempt to settle at this stage?’ be yes or no?

 

 

My gut feeling is no, for the reason that I have repeatedly requested information from the claimant,

ie CPR and CCA and they have failed to provide anything to me, therefore there is nothing to settle.

Any thoughts or advice?

 

 

Also, given that I am completing box D2 requesting allocation to the small claims track for the reason stated in a previous post,

 

 

should I also complete form N180 and send it along with form N181,

or hold fire with form N180 until I receive a response to my completed form N181?

[martin2006]

As per Andy's previous post, N181 requesting re allocation to small claims track at box D2

[The Other Snowdog]

Hi. Would someone be kind enough to have a look over my draft N181 please?

 

A1 settlement

1. Do you want to settle? No

2. Do you want a one month stay? No

3. I have submitted a request under CPR 31.14 to Cohen & Co Solicitors and 2 formal requests pursuant to s.78 of the consumer credit act 1974 to Hoist Portfolio Holdings 2 Ltd for the disclosure and production of copies of documents mentioned in the Particulars of Claim. Neither Cohen nor Hoist has complied with these requests. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant.

 

B Court

 

B2 Trial

 

Is there any reason why your claim needs to be heard at a court or hearing centre? Yes

My local court [i will complete this on the form[

I would like to appear in person to defend this case.

However I am confined to a wheelchair and will be relying on assistance to enable me to attend court.

I therefore request that this case is heard at my local court.

 

D Case Management Information

 

D2 Track

 

I believe this claim should be allocated to the small claims track. The Claimant claims:

1. The sum of £7600.

2. Interest pursuant to s.69 of the County Court Act 1994 at a rate of 8.00 percent the sum of £2900

Interest has yet to be awarded at the discretion of the court, therefore the claim falls below the £10,000 threshold for allocation to the fast track.

 

D4 Disclosure of non-electronic documents

 

What directions are proposed for disclosure?

 

Standard Disclosure.

 

A request was made on March 7th 2016 to Howard Cohen and Co. Solicitors via CPR 31.14 for the disclosure and production of a verified and legible copy of the agreement, the assignment and the default notice. This request was not complied with.

 

 

A request was also made on march 7th 2016 to Hoist Portfolio Holdings 2 Ltd., pursuant to s.78 of the Consumer Credit Act 1974 for the production of a true copy of the credit agreement relating to the account in question.

This request was not complied with.

 

 

A further request was made on March 24th 2016 to Hoist Portfolio Holdings 2 Ltd pursuant to s.78 of the Consumer Credit Act 1974 for the production of a true copy of the credit agreement relating to the account in question.

This request was not complied with.

 

E Experts

 

Do you wish to use experts? No

 

F Witnesses

 

Myself, All facts

 

G Trial or Final Hearing

 

Less than One day, 2-3 hours?

 

J Directions

 

The Claimant shall send to the Defendant and to the Court:

 

o Copies of the Credit Agreement and any documents referred to within it which complies with the consumer credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.

o Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,

o Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

o Copies of any statement or other document relied upon

 

If the Claimant fails to comply with this order, the claim will be struck out without further order with costs in the case.

 

The Defendant shall thereafter file and serve the following

 

o An amended defence sufficiently particularised in response to the documents supplied by the claimant.

[The Other Snowdog]

Re the above post, apologies I attempted to change the colour of my responses to red. It seems I have not been successful.

[martin2006]

It looks fine to my eyes but please wait for Andyorch to input

[AndyOrch]

Hi. Would someone be kind enough to have a look over my draft N181 please?

 

A1 settlement

1. Do you want to settle? Yes

 

B Court

 

B2 Trial

 

Yes...My local County Court xxxxxxxx

 

I am the defendant

 

C Not applicable I am the defendant

 

D Case Management Information

 

D2 Track

 

I believe this claim should be allocated to the small claims track. The Claimant claims:

1. The sum of £7600.

2. Interest pursuant to s.69 of the County Court Act 1994 at a rate of 8.00 percent the sum of £2900

Interest has yet to be awarded at the discretion of the court, therefore the claim falls below the £10,000 threshold for allocation to the fast track.

 

 

D4 Disclosure of non-electronic documents

 

What directions are proposed for disclosure?

 

Standard Disclosure.

 

A request was made on March 7th 2016 to Howard Cohen and Co. Solicitors via CPR 31.14 for the disclosure and production of a verified and legible copy of the agreement, the assignment and the default notice. This request was not complied with.

 

 

A request was also made on march 7th 2016 to Hoist Portfolio Holdings 2 Ltd., pursuant to s.78 of the Consumer Credit Act 1974 for the production of a true copy of the credit agreement relating to the account in question.

This request was not complied with.

 

 

A further request was made on March 24th 2016 to Hoist Portfolio Holdings 2 Ltd pursuant to s.78 of the Consumer Credit Act 1974 for the production of a true copy of the credit agreement relating to the account in question.

This request was not complied with.

 

E Experts

 

Do you wish to use experts? No

 

F Witnesses

 

Myself, All facts

 

G Trial or Final Hearing

 

Less than One day, 3 hours

 

J Directions

 

Directions are with regards to the timetable of events leading up to the trial...not disclosure..you have already covered that in D4

 

I will will provide you with some examples tomorrow.

 

Regards

 

Andy

[The Other Snowdog]

Thanks for the amendments Andy. Regarding the points I erroneously put in part J, should I instead put them in D4? Or is that basically what 'standard disclosure' is? I just don't want to let them off the hook in terms of what they should be directed to disclose before the case is heard.

[The Other Snowdog]

Andy, you mentioned a couple of days ago that you would provide me with some examples of draft directions for part J. In the meantime I have been on another thread to which you had significant input and found some draft directions that I have amended slightly for my own case.

 

In the county court Bulk Centre Claim Number XXXXXXXXXX

 

HPH2 Claimant

and

The Other Snowdog Defendant

 

###### DRAFT DIRECTIONS######

 

 

1.The Claim be allocated small claims track pursuant to CPR 26.8 PD 2© It is not a complex case which is based on a simple contract and can be dispensed with in SCT. The alleged debt is below the threshold for Fast Track less the amount of interest claimed.

 

2.Each party must by 4.00pm on the xxth xxxxx 2016 serve to the other party standard disclosure of the original documents on which this claim relies.

In particular original copies of the agreement & terms and conditions, the default notice and the notice of assignment.

 

3.Each party must by 4.00pm on the xxth xxxxx 2016 serve on every other party signed statements of all witnesses of fact on whom they intend to rely

 

4.Costs in the case

 

Does this look okay? Also, regarding the deadlines specified above, what do they relate to and how do I know what deadline to specify? The date for submitting the N181 by the way is the beginning of June.

 

I'm sorry if I seem to keep bombarding you with questions, but I very much appreciate everything you are doing and really would be struggling without your input.

[AndyOrch]

Yes that's fine Snowdog..with regards the dates simply remove them the court will direct or type in place (Court to confirm)

 

Then send a copy of the DQ & directions to the claimant's solicitor and ask if they are in agreement and confirmation