HPH2 ltd/Cohen claimform - old Barclaycard 'debt'

[akacalvin]

I am really grateful for this Forum.

 

I am watching other people's reports with great interest so I thought I would share my own and see if I could garner some advice along the way.

 

I am currently a Student with some Debts carried forward from a crisis past where I lost my home. I am pretty much on route to starting over. I never took the BR option but was hoping to wait out the clock ( didn't have any other options ) on some of the debts and deal with what I could. It is probably close to the 6 Year mark and this is the first one to go for a CCJ. If they succeed it will be detrimental for my credit file recovery plan plus I don't have the finances to handle this. I may even return to looking at BR and becoming and Expat just so I can get a fresh start.

 

The particulars of the claim are as follows

 

Debt Legally assigned from MKDP LLP ( Ex Barclaycard ) to Claimant Hoist Portfolio Holdings 2 Ltd who is being represented by Howard Cohen and Co in the County Court Business Centre

 

Credit Card Debt £7500

Interest pursuant to S69 of County Court Act 1984 £3158

Court Fee £495.90

Legal Rep Cost £100

 

I have followed the standard advice by sending a CPR request to Howard Cohen and Co and a CCA request to Hoist Portfolio Holdings. I have acknowledged the claim to extend my deadline which I believe should take me to the 11th of April.

 

I am interested to find out if there is a possibility of the debt being Statute Barred as I know the last payment or contact may have been some time before the Default date. I will first obviously see if they have the documentation to support the claim. I have not made a SAR from Barclaycard as this would take too long. So when does the cause of action to start the limitations peiod begin. At last Contact/Payment/Default etc

 

I assume the next thing will be to issue a holding defence while I wait for a reply from the CPR and CCA. I am not sure how to make this but I guess I will call the Court on Monday to find out.

 

Any advice would be greatly appreciated. Thanks

[mercyblue]

The cause of action would normally start at the default date, or really the day after, as that's the first time the creditor is able to take court action.

You're unlikely to hear anything back before your defence deadline so I would get on with doing that defence.

I don't see what you mean by calling the court? Find out what?

[i hate bailiffs]

Contact the original creditor and ask them when the last payment was

 

For reference statue barred clock does not start from default date simply last payment

 

Check credit file what does that show

 

It is possible you will not hear back from your requests from Howard and co

Stick to court deadlines with defence

 

Get researching holding defence as if they fail to reply you will need to use that

[dx100uk]

hi ya

 

 

can you fill this out please

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**(1-Viewing)-nbsp

 

and post the Q&A back here.

 

great advise to go ring barclaycard!!

 

default date is nowt to do with SB date.

[mercyblue]

Contact the original creditor and ask them when the last payment was

 

For reference statue barred clock does not start from default date simply last payment

 

No it doesn't. The time limit starts at "the earliest time an action can be brought" as a credit card is a simple contract its limited to 6 years under the limitations act 1980. As you haven't broken the contract till the default date the clock doesn't start till then.

That is the whole point of a default notice to terminate the contract. Until the default date on the DN you can remedy the situation and remain in contract - it will tell you as much on a DN if you read it hence until that date there is "no cause of action" .

 

Be warned if you claim a debt is statute barred and its not you have just reset the clock back to zero.

 

But don't take my word for it have a look here https://www.nationaldebtline.org/EW/factsheets/Pages/25%20EW%20Time%20limits%20for%20recovering%20debts/Page-02.aspx

 

they are regulated by the FCA I'm not!

[dx100uk]

plenty of threads here infront of you calvin

simply go read up on them

 

 

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

[i hate bailiffs]

No it doesn't.

Oh yes it does!

Why not start your own thread to get clarity for yourself

Rather than give out incorrect information

 

Statue barred starts from last payment not default

 

Hoist are issuing claims like confetti at the moment

They failed to respond to my CPR request and CCA

Holding defence submitted with confirmation from the court

 

My guess is this may happen on this one

[mercyblue]

Oh yes it does!

Why not start your own thread to get clarity for yourself

Rather than give out incorrect information

 

Statue barred starts from last payment not default

 

http://www.legislation.gov.uk/ukpga/1980/58

 

" Actions founded on simple contract

5 Time limit for actions founded on simple contract.

 

An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."

 

That's the link to the actual act and the relevant part which I have copied for your convenience. The cause of action been of course the default because that when you breach the contract. Why do you think DN's are sent out ?

 

I don't need to start a new thread I answered the op's question correctly with an explanation as to why that is I even posted a link to nationaldebtline fact sheet which basically says the same thing and now the actual act itself. Perhaps you should start a thread as to why a limitation on a simple contract starts before that contract has been broken? I'd be interested to hear that.

 

To the op you can draw your own conclusions...

[dx100uk]

by reading your wrong advise ....I hope not.

 

cause of action is not the DN

that is the result of the cause of action

 

the cause is the missed payment.

the action is the DN.

 

dx

[Guest]

mercyblue

when you say 'default date' do you mean the missed payment ie breach (which is what the nat debtline you linked is saying)

[mercyblue]

by reading your wrong advise ....I hope not.

 

 

cause of action is not the DN

that is the result of the cause of action

 

 

the cause is the missed payment.

the action is the DN.

 

 

dx

 

Sorry a cause of action = a breach of contract. They aren't two separate things. A breach of contract doesn't happen till you fail to rectify the DN.

Also dx I posted a national debt link that says basically the same as me

 

https://www.nationaldebtline.org/EW/factsheets/Pages/25%20EW%20Time%20limits%20for%20recovering%20debts/Page-02.aspx

 

The cause of action (when the limitation period starts running) for simple contract debts, is usually when your agreement says the creditor is able to take court action because you have fallen behind with payments. This will usually be after one or two missed payments"

 

Would you like to explain why an fca regulated organization is peddling false information?

Or better still explain why they are wrong!

[mercyblue]

mercyblue

when you say 'default date' do you mean the missed payment ie breach (which is what the nat debtline you linked is saying)

 

What would normally happen is you miss two payments (as that link says) you would then get sent the DN which would give you 14 days to sort it out after that you would be in default and the sb clock would start ticking.

[Guest]

What would normally happen is you miss two payments (as that link says) you would then get sent the DN which would give you 14 days to sort it out after that you would be in default and the sb clock would start ticking.

ok. i too then disagree with you. and also side with what some judges have said in that a dn doesnt govern the existence of the right (cause). the cause already exists prior to the dn, which is why there is a dn (if applicable in the circs).

otherwise, a creditor could frustrate statute and do a dn (if applicable) whenever they like; 5 mths later, 1 year later, 10 years later....you decide.

anyway, a topic for another thread.

[dx100uk]

What would normally happen is you miss two payments (as that link says) you would then get sent the DN which would give you 14 days to sort it out after that you would be in default and the sb clock would start ticking.

 

but you still have to miss the 1st payment

the cause....

end off subject

 

 

:playball:

 

 

why do we always have to have the same disputes whenever a new member appears in the legal forum that thinks they know

better than the numerous successful court threads here already?

and numerous discussion threads already.

 

almost as if its a purposeful re-occurring theme

back on topic please

[mercyblue]

ok. i too then disagree with you. and also side with what some judges have said in that a dn doesnt govern the existence of the right (cause). the cause already exists prior to the dn, which is why there is a dn (if applicable in the circs).

otherwise, a creditor could frustrate statute and do a dn (if applicable) whenever they like; 5 mths later, 1 year later, 10 years later....you decide.

anyway, a topic for another thread.

 

Indeed so Ford. I suspect that was from incorrect DN's were been sent out so they merely sent out another one which makes no sense you can't terminate a contract again - gets interesting then but as you say not for this thread.

 

dx "a cause of action" means the breach of contract. What creates that "cause of action" is irrelevant, if I have a contract to fit your new kitchen by a date the "cause of action" arises when I fail to meet that deadline.

And I have been a member here for 7 years so I don't consider myself new. I always try to support what I am saying with an explanation as to my conclusion with relevant links if possible and appropriate and am happy to debate a point in a civilized manner (as here where Ford brings up a very valid interesting point - which indeed could be interesting in a separate thread). I have never seen you ever give an explanation you are jusr RIGHT period, I imagine professor Goode could post on here and you would rubbish him and say he was just wrong.

 

To get back to this thread the op asked when SB starts if it goes to court and the judge decides the SB does indeed start with the DN date they aren't going to be very happy with your advice dx. Indeed they would probably unlikely to come back here and say they got right royally stuffed - they won't be one of your "numerous successful threads" and you can continue dishing out advice that could potentially cost people thousands of pounds just because you can't ever consider that you could ever be wrong.

In any case the law is never black and white even something what would maybe considered absolute as SB as we have here Ford has correctly shown that it isn't (note the use of his phrase "some judges") so we could actually both be right!

I would urge you dx to be more open minded to other views it's not a competition to be who is right or wrong. In reality I suppose you could say that you give a rosy picture or what could happen I am much more likely to give a much more pessimistic view of also what could happen. Hopefully that might give a poster a balanced view of the possibilities and allow them to make their own conclusions.

But please dx don't dismiss my posts out of hand because they are entirely valid for the reasons I have just laid out.

[akacalvin]

Thanks for all the advice. I believe my defence needs to be submitted by Monday so I will get on it tomorrow after an exam. The CCA and CPR were received by the Claimant only on Monday.

I am not sure how this will impact my holding defence.

 

I am uncertain wether to include my the statute of limitations argument alongside my holding defence. There seems to be some disagreement over when it is counted from and I am guessing it may be a subjective decision to be made by a judge. It seems important to clarrify dates however I dont want to walk into the trap of recongnising the debt in the meantime.

 

Does a persons Credit file form any evidence which can be used by the Claimant.

 

I don't know if circumstances or ability to pay should form any part of a defence or will it simply detract from the defence. Example : instead of being hit with the full whack can I mitigate the risk. I do recall a proposal from BC which offered to write off most of the debt in the past but even that was unmanageable in the greater scheme of things.

[Guest]

 

I am uncertain wether to include my the statute of limitations argument alongside my holding defence. There seems to be some disagreement over when it is counted from and I am guessing it may be a subjective decision to be made by a judge. It seems important to clarrify dates however I dont want to walk into the trap of recongnising the debt in the meantime.

 

.

the bar clock stops once a claim is issued.

basically, when the 6 years (or 5 in scotland) is in between missed contractual payments (breach, and cause imo) and a default notice, the dca's will argue its from the default notice.

afaik, there are some cases/appeals currently going on about the issue. thats what it needs, an authoritative decision on it. but, each case is dependant on its own circumstances/contract. there is some case(s) on it see the posts here for eg http://www.consumeractiongroup.co.uk/forum/showthread.php?223842-CCA-from-MBNA....is-this-valid/page8

maybe you could mention the issue 'notwithstanding' ie along with the 'holding'?

[dx100uk]

ideally you shouldn't mix anything with an SB defence

 

 

 

 

did you go ring Barclaycard?

and ask last date of payment or use by YOU

dx

[goodatresearch]

 

To get back to this thread the op asked when SB starts if it goes to court and the judge decides the SB does indeed start with the DN date they aren't going to be very happy with your advice dx. Indeed they would probably unlikely to come back here and say they got right royally stuffed - they won't be one of your "numerous successful threads" and you can continue dishing out advice that could potentially cost people thousands of pounds just because you can't ever consider that you could ever be wrong.

In any case the law is never black and white even something what would maybe considered absolute as SB as we have here Ford has correctly shown that it isn't (note the use of his phrase "some judges") so we could actually both be right!

I would urge you dx to be more open minded to other views it's not a competition to be who is right or wrong. In reality I suppose you could say that you give a rosy picture or what could happen I am much more likely to give a much more pessimistic view of also what could happen. Hopefully that might give a poster a balanced view of the possibilities and allow them to make their own conclusions.

But please dx don't dismiss my posts out of hand because they are entirely valid for the reasons I have just laid out.

 

Lower courts cannot go against a higher courts decision. The Court of Appeal and the High Court

have already said that the limitation period does not run from the DN it runs from the earliest date a claimant can bring action. You need to read the relevant cases.

[mercyblue]

"Lower courts cannot go against a higher courts decision. The Court of Appeal and the High Court have already said that the limitation period does not run from the DN it runs from the earliest date a claimant can bring action. You need to read the relevant cases."

Which usually is the DN one missed payment does not give rise to a cause of action - you have not yet broken the contract so no actionable cause.

Perhaps you could post a link to the relevant cases you are referring to.

If you are referring to reeves vs butcher which did indeed state the limitation started at the 1st missed payment. However BMWfinancialservices vs hart overturned that decision in the court of appeal coming to the conclusion that:

The Agreement, like many others, stated that the balance became due upon termination. If the Agreement had been regulated by the CCA, termination is subject to the lender serving (where appropriate) a notice under the CCA (most commonly a default notice or, for non-default cases, a combined enforcement and termination notice). Notice is specifically required before a lender can become entitled to (amongst other things) demand "earlier payment of any sum".

This envisages that the balance does not become due (and cannot be demanded as being due) until after the expiry of the notice period.

Edited April 8, 2016 by mercyblue
make clearer

[goodatresearch]

I hear what your saying mercyblue but I believe the precedent set by the BMW case can be distinguished on the facts. In BMW the cause of action was stipulated in the hire purchase agreement at clause 12 which stated that the cause of action did not accrue on customers default alone, but upon the decision of the hirer to terminate.

 

Of course creditors are going to quote this case, but are they going to rely upon it in court? The cases of Swansea City Council v Glass (1992) and the HL case of West Bromwich BS v Wilkinson (2005) may stop them in their tracks. Now of course, there is always the chance lower courts may find in favour of the BMW case, but these decisions would not set a precedent. Will creditors want to risk someone appealing a lower court decision on the back of the cases I have cited and the fact that the decision in BMW v Hart turned on the terms of hire purchase contract? Time will tell.

[mercyblue]

The second case you cite pertains to a land claim involving a mortgage. A mortgage is a deed not a simple contract (why there is a 12 year limit on mortgage claims) so its not relevant.

 

The first case you cite "the notices were not the cause of action, but only a condition precedent to bringing an action. Accordingly time ran from the conclusion of the works, and the claim was out of time." Sorry but I fail to see how this helps your case or that it is also relevant?

 

The bmw case makes it clear that a termination notice (of some sort) must be served. That makes complete sense.

 

In addition I would use the terms and conditions of the agreement (admittedly these are current hsbc t & c's but if they are taking you to court they should have the original t & c's applicable to the defendant - if they don't they could well be in trouble).

 

http://www.hsbc.co.uk/1/PA_esf-ca-app-content/content/pws/content/personal/pdfs/hsbc-bank-credit-card-tcs.pdf

 

9b We may end this Agreement in any of the

circumstances set out in Clause 9a, or if you

seriously breach the terms of this Agreement (for

example, if you do not make repayments on time

or at all) and demand repayment of the balance on

the Account, in each case we will serve on you

any notice required by law.

 

 

c

This Agreement has no fixed duration, however

it will also end when either of us gives notice

in writing to the other and where you end this

Agreement, when you return to us all Cards.

We will give you 2 months notice if we end this

Agreement under this Clause 9c

 

I've had a look at some 2004 monument (barclays) conditions basically the same except they only need to give you 30 days notice.

So in actual fact you don't have to miss any payments for them to want their money back. However in all circumstances a termination notice of some kind must be served and its that termination notice, which would usually be a DN, which gives rise to the cause of action. Its common sense really one side of a contract cant arbitrarily end a contract without informing the other party(s).Not to mention the relevant section of the cca requires a DN to terminate the agreement namely

 

87 Need for default notice.

 

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a)to terminate the agreement, or

 

(b)to demand earlier payment of any sum,

 

Its largely academic now this or are you expecting someone to go into court quoting the above cases? As for appealing I am not sure what you mean? You would need to ask at the time of verdict for permission to appeal which probably wouldn't be given so you would then need to apply for permission to appeal and watch your costs skyrocket.

The last time I was at court for permission to appeal it cost just shy of 2k (in 2010) that was just for permission to apply - not the appeal itself.

Sadly in the uk appealing is just not an option for the vast majority of individuals the costs would very quickly spiral out of control.

As for Fords earlier comment about why not say wait 5 years before issuing a DN I would argue that they could have issued a DN much sooner so it makes the issue what is the earliest time a DN could have been issued not when it actually was.

So what the earliest time a termination notice could be issued? The day after a missed payment? Well you could try arguing that, in that case if you did the actual start date would be by my reckoning would be the 21st day after the last payment.

But your problem there would be that normally you would continue to receive statements for some time after the last payment - late payment charges rip off etc. So your not considered in default, and no doubt you will get at least one letter saying give us some money or we will default you.

At the end of the day anybody going into court relying on the last payment been the start date would need to craft a very good WS to refute a claimant using the default date as the start date. I'm not saying its impossible...

[goodatresearch]

Its not clear cut is it. There's something to be said for both arguments. Until convinced otherwise we will have to agree to disagree as further discussion probably won't help the OP.

[dx100uk]

ideally you shouldn't mix anything with an SB defence

 

did you go ring Barclaycard?

and ask last date of payment or use by YOU

dx

 

 

akacalvin please action the above.

[mercyblue]

Its not clear cut is it. There's something to be said for both arguments. Until convinced otherwise we will have to agree to disagree as further discussion probably won't help the OP.

 

Whilst I would agree its not always clear cut and alluded to that at the end of my last post. But if you keep it simple section 87 of the cca is clear on the need for a default notice before they can terminate any agreement that is in black and white no argument possible there. That's what the claimants will rely on. If you cant counter that then you will lose.