Hoist/Cohen Court Claim - Barclaycard debt SB ?

[Musicam]

Hello all at CAG, I've received a second claim from Hoist/ cohens for a credit card.

 

Name of the Claimant ? Hoist Portfolio Holding 2 Ltd

 

Date of issue – 03 Feb 2017

Date to submit defence = - by 4pm Friday 03/03/2017 ?

 

What is the claim for –

 

Particulars of claim: (As Written)

 

The claim is for the sum of £11079.33 in respect of monies owing under an agreement with the account no. xxxxxxxxxxxxxxxx pursuant to the The Consumer Credit Act 1974 (CCA)

 

The debt was legally assigned by MKDP LLP (Ex Barclaycard) to the claimant and notice has been served. The defendant has failed to make contractual payments under the terms of the agreement. A default notice has been served upon the defenadant pursuant to Section 87(1) CCA.

 

The Claimant Claims:

1. The sum of £11079.33

2. Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the 27/09/11 to the date hereof 1947 days is the sum of £4727.90

3. Future interest accruing at the daily rate of £2.43

4. Costs

What is the value of the claim? £15807.23 (plus court fee £711.33 & Legal Reps Costs £100) Total £16618.56

 

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? Approx 2000/ 2001

 

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 (hoist)

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? No

 

Did you receive a Default Notice from the original creditor? Can't be sure

 

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

No

 

Why did you cease payments? Business ceased trading and couldn't afford rent let alone DMP payments

What was the date of your last payment? January 20th 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 managementicon plan?

 

Yes, Payplan DMP set up in Feb 2010

 

I wondered if I could use the statute barred defence or should I use the no paperwork? I have done the AOS on MCOL, should I send the CPR and CCA requests regardless of defence?

 

Your help is much appreciated.

[dx100uk]

urm difficult one

 

they've done it to claim [as its unjudged] the many years of backdated sec 69 int +£4k

 

let andy comment

theres another thread here with almost the same close date issue toward SB'd

I think we concluded to not go with the SB defence...

 

theres always going to be the fact that they'll not have enforceable paperwork as with all these BC debts.

[AndyOrch]

Why did you cease payments? Business ceased trading and couldn't afford rent let alone dmp payments

 

This was a personal credit card debt and not business Musicam ?

 

Regards

 

Andy

[Musicam]

Sorry, to be clearer yes it was personal debt but the business was my only source of income and so I could no longer afford any payments and was in a bad way for quite a few years. Musicam

[AndyOrch]

Thats fine just wanted to clarify that point

[Musicam]

Hello all, I have received a letter back from Cohens regarding my defence and then they enclose the following documents 'by way of service upon me' -

 

Application form dated 1994

Terms & Conditions

Some copy statements from 2009 to 2011

Default Notice dated 2011

Notice of assignment dated sept 2011 barclays to mercers

Notice of assignment dated 2015 MKDP to Hoist

 

The T & C's are from 2010 and have no signatures on them but they've managed to place my name and previous 1990's address at the top and the print on each page doesn't match. It all looks a bit cobbled together to me! They do have the standard interest rate tables on but no credit limit.

 

The letter states if i fail to withdraw my defence they are instructed to proceed to a final hearing and they reserve the right to exhibit this correspondence to the court.

 

I've searched the threads but am a little conflicted as to whether I should write back to them or not. I don't think they have fulfilled their obligations to the CCA request and the supplied paperwork not acceptable is it?

 

Many thanks, cam

[AndyOrch]

What defence did you submit ?

[dx100uk]

please scan up to ONE multipage PDF what they have sent

follow the upload

 

probably the old 620000 stuff they always churn out

no you don't write to them

and what date did you file the defence too

[Musicam]

Thanks Andy, I filed the defence on 28th Feb as I was going abroad so had to do it slightly early. I sent the CCA and CPR requests on the 15th feb (no replies) and used the no paperwork defence.

 

I've attached the paperwork received from them, the conditions and t&c's are in the order they've sent them. They had stapled them together with a header page with my name and old address as if they are trying to make it look official. The application form is a very poor copy from them so its difficult to see but it does say 'Application Form' in the top left corner.

 

Many thanks, cam

CCA Paperwork received.pdf

[AndyOrch]

Many thanks Musicam.

 

But without an actual copy of the defence you submitted all the above is irrelevant.

 

Andy

[Musicam]

Sorry, here's the defence submitted.

 

Particulars of claim: (As Written)

 

1.The claim is for the sum of £11079.33 in respect of monies owing under an agreement with the account no. xxxxxxxxxxxxxxxx pursuant to the The consumer crediticon Act 1974 (CCA)

 

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 defenadant pursuant to Section 87(1) CCA.

 

The Claimant Claims:

1. The sum of £11079.33

2. Interest pursuant to s69 of the county courticon Act 1984 at a rate of 8.00 percent from the 27/09/11 to the date hereof 1947 days is the sum of £4727.90

3. Future interest accruing at the daily rate of £2.43

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 denied with regards to the Defendant owing any monies to the Claimant. The claimant has failed to provide any evidence of agreement/contract/breach as requested by CPR 31.14 and is in default of a Section 78 request.

 

3. Paragraph 2 is denied the Claimant is put to strict proof that a notice of assignment was issued to, and received by the Defendant. The Defendant maintains that a notice of assignment was never received.

Regarding paragraph 2, 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 ofProperty Act and Section 82A of the consumer credit Act 1974.

 

4. Paragraph 3 is denied as The Defendant maintains that a default notice was never received. The Claimant is put to strict proof to that a default notice was issued to and received by the

Defendant.

 

5. On the 15th February 2017 I made a legal request by way of a section 78 request to the Claimant. The Claimant has not yet produced the requested documents therefore I am currently unable to fully defend this claim.

 

6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed and evidence any breach and notice of breach by way of a default notice or

notice of sums in arrears.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement; and

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

© show how the Claimant has the legal right, either under

statute or equity to issue a claim.

 

7. 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.

[AndyOrch]

Many thanks...well wait now until the the end of March and see if they wish to proceed...there is nothing else for you to action until they decide if they wish to proceed.

[Musicam]

Thank you Andy, you're a star!

[Musicam]

Hi,

I have just received a notice of allocation to the Small Claims Track (Hearing) and the letter states the court believes the case to be suitable for mediation.

 

It also stated that both parties had to contact the court within 7 days with today being the last day

 

I rang and they asked if I would accept mediation by telephone to which I agreed so they can't use refusal against me.

 

The lady did tell me they hadn't had a response from the claimant at that point.

 

Am I right in thinking when they call for mediation I say the claimant hasn't provided the requested documents under a CCA request?

 

What would I need to explain or is there a particular way it should be approached?

 

Many thanks as always, cam

[dx100uk]

they will ask the same questions as on the N180.

 

 

when they do

you say no to paperwork

end of mediation.

 

dx

Edited May 15, 2017 by Andyorch
edited

[Musicam]

Hi guys, I'm in a bit of a panic.

 

After ringing the court and saying yes to mediation I was expecting contact to arrange

 

today I have received the witness statement from Cohens including copies of the reconstituted agreement, default notices and original application form.

 

I was under the belief that they had to attempt mediation, is this incorrect?

 

I now realise I have to have my witness statement in by tomorrow and don't know how to do it.

 

I'm searching the forum but struggling to focus all the info down to exactly what I should do.

 

Any help would be greatly appreciated.

 

They are using 'Carey v HSBC' to argue they can use a reconstituted agreement in their statement.

[AndyOrch]

In fairness...mediation does not always happen.....and it does state in the Notice of Allocation the directions should mediation fail or not happen that you received on the 15th May informing you the dates that you had to comply with directions.

 

Andy

[dx100uk]

so you had directions from the court that you had to serve your WS?

often the fleecers send theirs early to unsettle and panic defendants.

when its not even required yet

[Musicam]

The last communication I got was the notification of allocation to the Small claims track and the first page states

'Having considered the papers in your case,

the court considers believes your case is suitable for mediation'

and then the details of how to accept.

 

 

I just thought it wouldn't get further than mediation and didn't read the second page properly.

 

 

The court date is set for the 22nd of this month and then halfway down it mentions the witness statement to be in 14 days prior.

 

 

I can send it first class today,

I'm just really struggling and worried about the reconstituted agreement.

[AndyOrch]

" I just thought it wouldn't get further than Mediation and didn't read the second page properly. "

 

Always read all correspondence to the end ...rule number 1.

 

I once sat a managerial exam and it had two pages of all the things they wanted answered...last point on page 2 was " do not aswer any of the questions and well done on reading this memo to the very end:wink:

 

Can you post up a copy of their witness statement/exhibits/disclosures...suitably redacted.

 

Andy

[Musicam]

haha, I wonder how many people answered all the questions before they got to the end?

 

I've uploaded their statement, thanks for helping. I feel very foolish for leaving it till the last minute and do appreciate everything you guys do. Cam

witnessstatement.pdf

[Musicam]

Just uploading the exhibits now

[Musicam]

Here's the rest exactly in the order received and I've labelled them exhib1, 2 & 3 as I could only do 10 pages on each!.

 

 

One thing I noticed was exhibit HT7 stated in point 20 of the 'reply to defence' that the letter from cohens 7/3/2017 asking me to withdraw my defence is included

 

 

but the only things in HT7 are the notice of assignment and payment option letter from robinson way.

 

 

Not sure if this is of any relevance but they've obviously made a mistake. Thanks, cam

merged.pdf

[dx100uk]

ive merged you PDF 's to one small file

and I've hidden it

we can see it others cant

as you've left numerous ref numbers and you name on a few bits.

 

 

dx

[dx100uk]

yea old 620000 agreement they all appear to rollout and stick your name at the top of

dx