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r710

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

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Hello,

 

Not surprised (yet rather ashamed) to have received another claim form for my husband's old business debts.

 

Name of the Claimant ? Hoist Portfolio Holding 2 Ltd

Date of issue – 14 Oct 2016

1st Nov 2016 to submit acknowledgement

defence by 4pm 15th nov

What is the claim for –

 

1.This claim is for the sum of £8687.88 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXX

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

2.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

 

3.The Claimant claims

1. The sum of £8687.88

2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the 23/11/11 to the date hereof 1783 days is the sum of £3395.19

3. Future interest accruing at the daily rate of £1.90

4. Costs

 

What is the value of the claim? . Total £12726.81

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

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

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. Debt purchaser

Were you aware the account had been assigned – did you receive a Notice of Assignment?

We would have but can't guarantee we have kept it.

Did you receive a Default Notice from the original creditor? As above, we would have. Kept some of the early letters.

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

Probably, no reason to doubt we haven't. Ashamed to say we haven't actually been reading them but am sure we would have.

Why did you cease payments?

Business failed very suddenly due to recession, stopped payments to all creditors as my husband couldn't manage the debt.

 

My husband intended at that point to go bankrupt but as moved into low paid employment, he needed to save bankruptcy fee.

 

We then had to prioritise moving house due to being harassed by a neighbour

and then always something else came along that needed money.

Classic burying heads in the sand then followed as we seemed to be getting life back together.

 

What was the date of your last payment? He last paid around April 2011 but Noddle says defaulted in Sept 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 a debt management plan? No

I have been through this twice before, once with Hoist and Lowell (both were not pursued once we filed our defence), but notably these were both credit accounts.

 

I clearly have some reading to do to determine in what way an overdraft agreement (and any relevant defence) may be different,

 

 

but my initial understanding is that I need, in the first instance, to be sending off a CPR31.14 (current account version) and that a CAA request is not appropriate.

I will send off the CPR31.14 request tomorrow via recorded delivery.

 

I intend to also acknowledge the claim asap (by 1st Nov) and tick our intention to defend all.

 

I assume that it remains that the onus is on Hoist to show they have the relevant paperwork to prove the debt?

 

I would be very grateful if, in due course, someone would look over our defence.

 

Thank you, r710

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you say this was a business debt

was it in the business name?

 

what was he?

sole trader or ltd company?

dx


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Yes a debt related to the loss of his business. One appointment at the bank and he followed advice (notably HSBC), opening the account as a sole trader. All business debt he therefore was personally liable for.

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Was the business a Ltd Company ? was it dissolved r710...was the debt not included?

 

Andy


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Hi Andy,

 

No, not a limited company, so nothing to dissolve unfortunately.

 

r710

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Good evening,

 

I wonder if someone could offer any advice about the following for a defence?

 

Particulars of Claim:

 

1.This claim is for the sum of £8687.88 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXX

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

 

2.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

 

3.The Claimant claims:

 

1. The sum of £8687.88

2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the 23/11/11 to the date hereof 1783 days is the sum of £3395.19

3. Future interest accruing at the daily rate of £1.90

4. Costs

 

Defence

The Defendant contends that the particulars of the 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.

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor HSBC. It is denied that I am indebted for the alleged balance claimed. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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 and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

2. Paragraph 2 is denied. HSBC have never served Notice pursuant to 76(1) and 98(1) of the CCA1974 and therefore the Assignee is therefore prevented from seeking any relief for any alleged outstanding balance pursuant to the CCA1974.

 

3. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

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

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 26 October 2016 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim. The Claimant has failed to respond or comply with this request.

 

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 would be grateful for some guidance as to what amendments may be necessary.

 

Thank you

 

r710

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That is the standard overdraft defence which is fine to use...I would look again at their point 2 and your response...they do not refer directly to service of a Notice pursuant to 76(1) and 98(1) of the CCA1974 (the default/breach) only that you failed to repay overdrawn sums for whatever reason....so refuting the lack of service of this Notice does not really refute their pleading ?

 

It requires rewording to get that fact across

 

Andy


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Thanks Andy for highlighting that.

 

Could it be as simple as stating:

 

Paragraph 2 is denied. I have never been contacted or requested by HSBC or the Claimant to pay any alleged overdrawn sums.

 

Or should I use...

 

Paragraph 2 is denied. Any amount claimed is far in excess of any agreed overdraft limit with HSBC. Any alleged balance claimed is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

 

Please let me know what you think.

 

Thanks

 

r710

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Thanks Andy for highlighting that.

 

Could it be as simple as stating:

 

Paragraph 2 is denied. I have never been contacted or requested by HSBC or the Claimant to pay any alleged overdrawn sums. Go with that one

 

Or should I use...

 

Paragraph 2 is denied. Any amount claimed is far in excess of any agreed overdraft limit with HSBC. Any alleged balance claimed is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

 

Please let me know what you think.

 

Thanks

 

r710

 

Andy


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Thank you Andy.

 

So I assume I am good to go with the following (second point replaced with agreed suggestion).

 

1.This claim is for the sum of £8687.88 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXX

 

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

 

3.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

 

The Claimant claims:

 

1. The sum of £8687.88

2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the 23/11/11 to the date hereof 1783 days is the sum of £3395.19

3. Future interest accruing at the daily rate of £1.90

4. Costs

Defence

 

The Defendant contends that the particulars of the 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.

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor HSBC. It is denied that I am indebted for the alleged balance claimed.Any amount claimed is far in excess of any agreed overdraft limit with HSBC. Any alleged balance claimed is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

 

2.Paragraph 2 is denied.I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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 and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

3. Paragraph 3 is denied. I have never been contacted or requested by HSBC or the Claimant to pay any alleged overdrawn sums.

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

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

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 26 October 2016 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim. The Claimant has failed to respond or comply with this request.

 

6.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.

 

 

 

 

Will be very relieved to get this sent off as the deadline is Monday.

 

Thank you for your help.

 

r710

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Just a few tweaks on 1. particulars renumnbered and your response paragraphs changed to suit..... and you missed off 6.

 

Good to go now.

 

Andy


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Thanks so much.

 

Will update as to progress.

 

Very grateful for this site.

 

r710

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Hi,

 

today we received a Notification of Proposed Allocation to the Fast Track. We have until 23rd Jan to complete an N181 form.

 

I know I now have a lot of reading around how to deal with this but I will struggle to get some quiet time for reading for a few more days.

 

Is this still something we can fight, given our circumstances?

 

 

I'm hoping for some reassurance to stop me worrying all over Christmas...

 

Regards, r710

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Nothing has changed...just the next part of the process to allocate the claim to track and transfer it to your local county court r7. If they actually pay the hearing fee (the stage after this is a signal as to whether its proceeding to trial.)

 

Completing the N181 is a little more complex than Small Claims Track...if you type in N181 into the search box (top right under the CAG Logo) this will bring up all the threads that involve completing the Directions Questionnaire.

 

Have a go at completing it and drafting initial directions and then post here for comment and we can check them.

 

And...dont worry over Christmas or let it spoil your festivities...

 

All the best

 

Andy


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Thanks Andy,

 

I really appreciate your response.

 

I'll follow your advice in a few days when things are calmer.

 

Happy Christmas to you.

 

r710

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Hello,

 

Have been spending some time reading around threads to get a better understanding of where we are at and what we might expect next.

 

Am almost at the point of drafting my response to the N181 and sharing with you but thought I ought to highlight a couple of things that have come to light after some searching around.

 

I have found old statements which show that this particular account number was my husbands personal account.

This means that the agreement must have been pre-2007.

He'd had an HSBC account for many many years before he defaulted (on every account he had),

 

not sure exactly when he was given the overdraft but will have been way before 2007.

Does this change much other than the onus for the claimant to provide the actual overdraft agreement and not a copy/reproduction?

 

Does it make a difference that he used to have an annual review of his o/d and get letters that said the o/d facility has ended, but they are giving another on terms attached.

You don't have to do anything etc..

Is that not his implied agreement that they can rely on and not need to provide the very original?

 

I notice that a random statement we have from August 2011 shows he had stopped using the account, and that he had just gone over his £1000 overdraft limit due to the charges being applied.

 

The sum they have given of £8687.88 must therefore predominantly be made up of bank charges applied in the years thereafter.

 

I understand that as the figure is not over £10k, we can request that this is dealt with in the small claims court and not via the Fast track process (thus removing the risk of high fees/costs should this not go the way we would want).

 

Finally,

I have discovered some paperwork (Notice of Sums in Arrears - two for 2012, two for 2013, two for 2014 and one for 2015, and Statement of account - three sheets of paper covering Jan 2012 to Dec 2014) from Hoist.

It was sent as a bundle in Jan 2016 to us.

 

They state that it has come to their attention that

"for a period of time you were not provided with certain documents in relation to your account".

 

"These documents are official notices that the CCA 1974 states should be sent to customers who are in arrears of their original credit agreement".

 

It goes on to say that during the time we were not provided with these,

we would not be liable for any interest or default sum charges

"but as no such charges were applied in this period this does not affect your account".

 

NOTE: Whilst I think this relates to this particular claim, I cannot be certain.

The amount on the statement is £8115.09.

The ref number on the documents does not match any account number we have and it only states Ex-HSBC.

 

Have looked at Noddle to see if this will confirm it's linked to this current claim but there are three "Other" types of debt all with Hoist against them. They do not show where they originated.

 

The other two sums outstanding are £5565 and £12798.

I would assume that the smaller of the two other figures would have started off as his business account o/d (also HSBC),

 

 

I can only assume that it is does relate to the current claim I am aware of, and that they have added more charges/fees that haven't been updated onto Noddle...

 

Does the discovery of this paperwork mean our original defence is now substantially flawed?

(Point 3 of my defence)

 

It had been my intention to ask that it is heard in small claims due to sums involved, and to submit standard directions as the claimant has not approached us in recent weeks.

 

Any comments or advice on this?

 

Thanks r710

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Hi,

 

Is anyone please able to look over my draft N181 please and offer any advice around amendments needed?

 

A. Settlement

1. Do you want to settle? Yes

2. Do I want a stay? 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

 

D1. Applications. No

 

2. Track.

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

1. The sum of £8687.88

2. Interest pursuant to s.69 of the County Court Act 1994 at a rate of 8.00 percent the sum of £3395.19

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 26th October 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/overdraft Facility confirmation and Terms and Conditions from that date pursuant to section 61B of The Consumer Credit Act., the Demand/Termination Notice, Notices of Sums in Arrears under running account credit CCA2006 sec 86C, Notice of Assignment. 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

 

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 (Court to confirm date) 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 (Court to confirm date) and serve on every other party signed statements of all witnesses of fact on whom they intend to rely

 

4.Costs in the case

 

 

I would welcome any advice on the suitability of this draft N181 response, particularly in light of info shared in my previous post #16.

 

Many thanks

 

r710

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Thats fine r710...(looks very familiar):wink:

 

 

Just the one amendment...

 

2. Do I want a stay? Yes...1 month

 

Regards

 

Andy


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Thanks Andy. Yes, found your good advice elsewhere! Would not have known what on earth I was doing otherwise.

 

Donation has been made to this site.

 

Away with work for a couple of days but will get this posted off at the end of the week. One copy to Court and one (unsigned copy to Howard Cohen), one copy for us.

 

Will update you and return for further advice as it progresses.

 

Many thanks.

 

r710

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Evening.

 

Can I please just check it is right to send the claimant copy to Howard Cohen and not the actual Claimant, Hoist?

 

 

It is Howard Cohen that is listed on the original claim as the "address for sending documents".

 

Don't want to make a silly mistake at this point.

 

 

I have checked through other posts and these just seem to refer to a "Claimant" copy

 

I would be grateful for clarification.

 

Thank you,

 

r710

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yes cohen


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Thanks, can get this off now.

 

Much appreciated.

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Hi,

 

we have received a copy of the Claimants DQ which has been filed to the Court (double checked on MCOL).

 

It came with a covering note stating that the claimant will consider any reasonable proposals to discharge the sums claimed..

 

They have requested a stay of one month.

MCOL shows that an Order was made on 26/1/17 for "stay of settlement".

 

They agree it should be allocated to the Small Claims track as it "relates to straightforward Consumer Credit matter and there are no points of law to address in respect of the defence filed".

 

Their draft directions:

 

1. Pursuant to CPR 26.7(2), the Claim will be allocated to the Small Claims Track.

 

2. There be a stay in proceedings of 1 month to allow both parties to negotiate settlement of the claim by way of the Small Claims Mediation Service.

 

3. Both parties to inform the Court by if settlement has been agreed or if an extension of the stay is required.

 

4. If a settlement has not been agreed, then the Claim to be transferred to the Defendant's local Court to be allocated to the Small Claims Track and listed for a Hearing on a date to be fixed by the Court with a time estimate of 1 hour.

 

5. The Claimant pay the hearing fee on a date to be fixed by the Court.

 

6. No expert evidence being necessary, no party has permission to call or rely on expert evidence.

 

7. Each party shall deliver to every other party and to the Court office, copies of all documents on which they intend to rely upon no later than 14 days before the hearing along with a signed statement of truth.

 

I know I now need to do a lot of reading of other threads around mediation and the next stage of the process,

 

 

as I understand it we need to wait for the mediation service to contact us,

but that this will fail as we still don't have the information from them that we need in order to be able to consider settling.

 

 

If it then goes to court, it will hinge on what documents they produce 14 days before the Court date..

 

What impact does the info I gave in #16 have on what could happen next?

 

Do we still have a chance with this?

I'm worried that as this gets more complicated, and real, my husband will cave.

 

I would appreciate some words of advice.

 

r710

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whatever paperwork YOU have found

and whatever theories you might gain from them

YOU KEEP TO YOURSELF.

 

 

its what the claimant provides that the claim will be decided upon...


PLEASE DONT HIT QUOTE IF THE LAST POST IS THE ONE YOU ARE REPLYING TOO.

MAKES A THREAD TWICE AS LONG TO SCROLL THROUGH!

please do not post jpg images directly to a topic..USE PDF ....READ UPLOAD.

 

WE CAN'T GIVE ADVICE BY PM - IF YOU SEND ME A LINK TO YOUR THREAD - I WILL BE HAPPY TO OFFER HELP THERE

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The CAG Interest Tutorial Read Here

spreadsheets 

 

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Lets wait until you get your Notice of Allocation with the courts Directions r7 and we will take it from there.Its not getting complicated at all...nothing has changed and anything else can be addressed in your witness statement.

 

Regards

 

Andy


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