Hoist/Cohen claim form - ex-HSBC OD debt ***Claim Discontinued***

[r710]

Thank you, trying to keep my anxiety in check and your words are reassuring.

 

I'll update when I hear from the court directly.

 

r710

[r710]

Hi,

 

we received a "Standard Order for stay for settlement with consent of all parties" form.

 

This confirmed that on or before 14th Feb that one of the following has to happen:

 

Either

 

the claimant must notify the court that the whole of the claim has been settled

 

Or

 

the claimant or defendant must write to the court requesting an extension of the stay period, explaining the steps being taken towards settlement ..

This letter should confirm the agreement of all other parties.

 

Or

 

All parties must file a completed DQ at the court. ....

 

 

We haven't heard anything from the Mediation Service but from what I read this is not uncommon due to the short timescale provided.

 

We haven't heard anything further from Howard Cohen/Hoist. (other than their DQ - already discussed, which offered a line inviting us the claimant will consider reasonable proposals..

 

 

Is it right that I now have to submit a further DQ, which I presume would state no to mediation?

And I would write the reasons in the box provided on the DQ

- that Neither Hoist/Howard Cohen or the Mediation Service has made contact and that in any event,

mediation will fail as they have not provided the paperwork requested?

 

I will need to post this tomorrow morning if so.

 

Thanks in advance

 

r710

[AndyOrch]

Correct...

 

Andy

[r710]

Thanks Andy.

 

Just a quick question. Do I have to send Howard Cohen a copy (unsigned) of the DQ at this stage? The Order for stay from the Court does not specifically state this.

[AndyOrch]

Yes send it unsigned

[r710]

Thanks. Will do.

 

r710

[r710]

Hello,

 

we finally heard that the claim was allocated to Small Claims track and were contacted by our local court, citing a hearing on 5th May.

 

The Notice of Allocation document states we must send to the Court and the claimant a witness statement and copies of all documents which we rely on no less than fourteen days before the hearing.

Does this mean to include the day of the hearing? So would this be by Fri 21st April?

 

I now need to get on with the witness statement sharpish, and will post on here for your advice.

This rests almost solely on the fact that they have not provided any documents for us to acknowledge any particular debt.

 

The claimant must pay £335 by Mon 24th.

Does it ever get to this stage and the claimant backs out?

 

In a way I am glad to think that this will be over one way or another soon,

but on the other hand the thought of this progressing terrifies me.

 

 

I am trying to remember someone's wise words that nothing has changed yet and we essentially need to see what documents they produce.

 

 

Mentally I am running on empty.

A very close relative has been critically ill in a hospital out of area for several weeks, and I recently experienced a significant emotional trauma.

 

 

My husband is continuing to bury his head in the sand over this despite my warning that I cannot speak for him in Court.

But for our children's sake, I have to try to challenge this as far as I can.

 

I'll post my witness statement asap.

 

Regards

 

r710

[dx100uk]

we've had one today discontinued and they disc all the time

 

 

with no paperwork

they aint going nowhere near a court room...

 

 

and its an OD too

[r710]

Thank you.

 

So I will just go ahead with complying with our directions and see firstly if they pay the fee, and secondly, if they comply with the directions - although I have read that the claimant often submits the late, having had then the opportunity to read the defendant's witness statement and documents. Clearly it's case of one step at a time.

 

I'll have my witness statement sorted by tomorrow eve.

 

Regards, r710

[dx100uk]

there are quite a few good OD WS's here already

 

 

you don't file too early either

[r710]

Good evening.

 

I've looked around and tweaked an example OD witness statement that I thought best met our circumstances.

 

Can someone please advise on the below?

 

Paragraph 6 is very relevant in part but the example states that the CPR 31.14 does apply because in that example, the claim was trackless. Does that mean it doesn't apply if it's been allocated to small claims track? I am aware this may need removing or rewording but just want to check my understanding.

 

 

WITNESS STATEMANT OF XXXXXXXXXX

 

I.XXXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1.It is admitted that I have held a current account with HSBC in the past. The account was opened around 1984 and used to facilitate the payment of my income and expenditure.

 

2.It is admitted that I accepted a facility/service offered by HSBC to be able to overdraw to a limit set and reviewed by HSBC on the balance of the above current account.

 

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by HSBC due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair terms in Consumer Contract Regulations 1999 on this point.

 

4. It is denied that I defaulted on an “agreement “. An Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which HSBC failed to comply with.

 

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee.

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

 

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Again it is denied any Notice of Assignment was ever received.

 

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

 

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

7.The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon, therefore their claim to section 69 interest is also denied.

 

8.Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

 

As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out pursuant to CPR 3.4 as having no basis.

 

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

 

I'd welcome your thoughts as to whether this suffices.

 

Regards, r710

[dx100uk]

when you sent the CPR it was not allocated

 

 

good to go IMHO.

 

 

but you've weeks yet?

[r710]

Thanks dx100uk,

 

Thank you for clarifying that. That makes sense now.

 

Trial is listed for 5th May. Directions are to return no later than 14 days before, so was thinking I would post special delivery this Thurs to arrive on Fri. This is the last day as I understand to comply with directions given to us.

 

It won't surprise you that we have not received a the documents Cohen rely on yet.

 

As far as "exhibits", is it correct that I only list the CPR request and then the witness statement? I can't think of anything else we have, unless we are expected to include post office receipts to prove our correspondence with Cohen in response to their claim...

 

Regards

[dx100uk]

just the CPR

[r710]

Great, thank you. So very grateful for your help. I don't feel so alone with this.

 

r710

[dx100uk]

do it tomorrow to be safe

[r710]

Hi,

 

letter from local Court stated claimant must pay £335 by 4pm on 24th April or claim will be struck out.

 

 

It goes on to say there will be no further correspondence from the court regarding payment of the fee or warnings as to the consequences of non-payment.

 

My husband called the court today, 25th, and he was told the fee hadn't been paid but they would write to the claimant today and give them 7 more days to pay it.

 

It would seem, rather positively, that if the claimant has not paid yet, there is likely to be a reason

(ie. as you have said before that this is just a speculative claim).

 

 

But is it usual for them to be given extra time and a reminder to pay the fee?

In your experience how likely is it that the Claimant just overlooked payment of the trial fee?

 

 

 

r710

[dx100uk]

doesn't matter really

the court decides...

[AndyOrch]

Paying the hearing fee is easily missed when you have submitted 1000s of like claims at the same time....plus the claimant does not expect any defences and therefore following court directions tends to get a tad complicated and uncontrollable.

 

Andy

[r710]

Evening,

 

Just wanted to update that today we received a letter from Howard Cohen stating that their client has instructed them to "discontinue the claim". A copy of the Notice of discontinuance is enclosed.

 

I am so relieved and so grateful for your help. I will be making a donation to the site when I am paid tomorrow.

 

I don't doubt that I will need to return in future for more advice but I understand that any further claims that come up may soon be statute barred as my husband ceased trading in early May 2011 and no payments were made, nor acknowledgements made, after this time.

 

Thank you so much. You do a great job for us all.

 

r710

[dx100uk]

hey magic result

 

 

well done CAG.

 

 

dx

[AndyOrch]

Well done r710...thread title amended to reflect the outcome.

 

Regards

 

Andy