Hoist/Cohen Court Claim - Barclaycard debt SB ?

[AndyOrch]

Many thanks Musiic...I will run through it this evening.

 

In the meantime start looking at other posters witness statements so you have an idea of form and content...try to find a thread similar and same solicitor...you will find the WS you have uploaded is very familiar and almost a template with the names changed.

 

Andy

[Musicam]

Thank you, i have quite a few open threads that I'm trawling through and just want to make sure I get it right cos it looks like I'm going to the hearing doesn't it! Cheers, cam

[Musicam]

Will this be ok Andy? With exhibits a and b (copies of the cca and s78 requests) do i also attach copies of proof of delivery and copy of the postal order?

Also on point 8, do I add copies of the documents they sent as exhibit D even though they've sent them as part of their witness statement?

 

WITNESS STATEMENT OF

_______________________________

 

I, being the Defendant in this case will state as follows;

I make this Witness Statement in support of my defence in the claim and the facts in this statement come from my personal knowledge.

 

1. On or around the , I received a claims form from the County Court Business Centre, Northampton, for the amount of £

 

2. There were no details about when the alleged default occurred, the degree of default or details as to how the sums claimed have accrued.

 

3. The particulars of claim fail to state when the agreement was entered into.

 

4. The particulars of claim state that the debt was legally assigned by MKDP LLP (Ex Barclaycard) to the Claimant.

 

5. On I made a formal written request to the Claimants solicitors requesting that the Claimant provides copies of all documents pursuant to CPR 31.14 mentioned in the statement of case [EXHIBIT A].

 

6. On , I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement, as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT B].

 

7. On or around I received a reply from the claimants debt collector, Robinson Way which failed to provide the documents I requested. [EXHIBIT C].

 

8. On or around the, the claimant’s solicitor replied and failed to supply the actual documents requested but supplied a reconstituted agreement and application form which are the documents they now rely on in court. [EXHIBIT D].

 

9. On or around the the Claimants solicitor replied again but failed to supply the document requested under s.78 CCA despite my entitlement to inspect this document. [EXHIBIT E].

 

10. The claimant has supplied a Notice of assignment and default notice and I put the claimant to strict proof that these were delivered or ever received by myself .

 

11. Until such time the claimant is able to prove a genuine copy of the agreement pursuant to section 78 CCA 1974, they are prevented from requesting any relief and any alleged agreement remains unenforceable until such time they can comply. It is therefore respectfully requested that the court compels the claimant to disclose all documents and failing to comply the court considers striking out the claimant claim pursuant to CPR 3 (PD 3.4)

 

 

I believe the facts stated within this Witness Statement to be true.

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

 

Thanks in advance

[AndyOrch]

Afraid not Music.....reads rather like a timetable of events rather than a witness statement in support of your defence.You should be dissecting the claimants points and stating your argument as to why its invalid.

 

I could draft a whole witness statement just on their point 5 & 6 which is pure fantasy

 

What date do you have to serve ?

 

Andy

[Musicam]

I think it has to be in today unfortunately, the hearing is the 22nd. I'll look at point 5 again now and see if I can expand. Thanks Andy

[Musicam]

Quick question Andy. I noticed the default notice they are using is on / from Mercers and I've read that its unenforceable as should have been from Barclaycard. Is this correct?

[AndyOrch]

Quick question Andy. I noticed the default notice they are using is on / from Mercers and I've read that its unenforceable as should have been from Barclaycard. Is this correct?

 

Mercers were the appointed agents of BC and allowed (according to BC) to issued Default Notices on their behalf...I have yet to see a Court disallow this argument.

 

http://legislation.data.gov.uk/ukpga/1974/39/part/VII/data.htm?wrap=true

 

Andy

[Musicam]

Would I argue on the basis that the application form doesn't have the credit limit or interest rate on and that the terms and conditions may not have the same conditions as the original or would that be too vague?

[AndyOrch]

Just drafting your statement Music...bear with me

[AndyOrch]

IN THE ******* COUNTY COURT

Claim No. ***********

 

BETWEEN:

Claimant

Hoist Portfolio Holding 2 Ltd

 

AND

Defendant

************

 

_________________________________

 

WITNESS STATEMENT OF **********

_________________________________

 

 

 

I ******, being the Defendant in this case will state as follows;

 

I make this Witness Statement in support of my defence in the claim.

 

The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts person in the opening paragraph.It is my understanding that they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

1. I understand that the claimant is an Assignee, a buyer of defunct or bad debts who are based in Jersey, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income as confirmed in the claimants witness statement exhibit by way of the Deed of Assignment

 

As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

2. On or around the ******, I received a claims form from the County Court Business Centre, Northampton, for the amount of £****.The claimant contends that the claim is for the sum of £X in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The consumer credit Act 1974 (CCA).The particulars of claim fail to state when the alleged agreement was entered into but their witness statement states it was 1994 23 years ago.

 

3. Contained within the claimants particulars the claimant pleads that The defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA. It goes on to evidence a default notice in their exhibits which is provided by Mercers and not the actual creditor Barclaycard themselves.It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(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.

 

Given that Mercers are in fact a Debt Collect Agency they cannot be considered to be the creditor or owner of the regulated agreement.

 

5. On the xxxxxxxxI made a formal written request by way of a CPR 31.14 to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A].

 

6. On the xxxxxxx I made a formal written request to the Claimant for them to provide me with a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT C].

The claimant has since disclosed a copy of the application which purports to be the agreement within its witness statement at point 5 exhibit HT1 and admits its very poor quality.It is averred that it is impossible to read and illegible..the court is invited to try and decipher the contents and in particular the prescribed terms pursuant to section 78 CCA1974 and sec 61 (1) c of the CCA1974.

 

The claimant tries to get around the poor quality by trying to rely on Carey v HSBC.Carey V HSBC is irrelevant in this matter and only applies to the giving of information under section 77/78/79 and is not retrospective to agreements entered into pre April 2007.I therefore contend that section 127 (1 and 2) accordingly applies in this case.

 

7. Furthermore the author of the witness statement at point 6 then tries to introduce a reconstituted version of the agreement (exhibit HT2) which is no more than a set of Terms and Conditions and in no way comply with the prescribed terms of a reconstituted version which they have previously tried to rely on at point 5 of their witness statement.

 

8. The Claimants pleaded case is that the Defendant entered into an agreement with HSBC under account reference **********. I am uncertain as to which account this refers to. It is accepted that I have had banking products with Barclaycard in the past however I have no recollection the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not try to mislead the court.

 

Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

 

Statement of Truth

 

I, ********, the Defendant, believe the facts stated within this Witness Statement to be true.

 

 

Signed: ________________________________

 

Dated: ________________________________

[Musicam]

Wow. Andy, I can't thank you enough. I've been reading posts all day trying to get my head round this and it gets to a point of information overload. Win or lose I will be donating what I can to this site, you are amazing!!

[AndyOrch]

If you are happy with the above...run 3 copies file/serve/retain a copy and add the dates and exhibit numbers and copies of the exhibits.

[Musicam]

Thats all done, can they do anything for it being a day late or will that be ok? Thanks again

[dx100uk]

no

you are a litigant in person

mistake are allowed

[Musicam]

Morning guys,

I've received a letter today from court saying the claim has been struck out as the claimant has failed to pay the hearing fee.

 

 

I can't believe they bothered to send a witness statement last week when they had no intention of going to the hearing.

 

Does the clock start again for statute barred or can they pick up this claim again in the future?

 

 

Thanks, cam

[AndyOrch]

Well done....

 

Clock starts from were it left off...the date of the claim...they may try to argue the strike out...but the new court directive states clearly ......if they fail to pay the hearing fee its struck out without further warning.

 

Thread title amended to reflect the outcome.

 

Regards

 

Andy

[Musicam]

Thanks Andy, donation done.

[AndyOrch]

[dx100uk]

 

 

well done

 

 

interesting they didn't bother with the fee after as they usually do

spoofing you by sending their WS early.

 

 

this old 620000 agreement/T&C's have been rolled out on too many claims by 3 fleecers in court now

the courts must be getting wise.

 

 

dx

[Musicam]

Hi all,

 

I've had a letter stating

'it is ordered that the claim be reinstated due to the claimant having paid the hearing fee'

 

and its now listed for a hearing in August.

 

Looks like we're back on then!!

[AndyOrch]

Did you submit your witness statement Musicam ?

[Musicam]

Hi Andy, yes I sent it on the 9th before i got the letter saying it had been struck out on the 10th! Sent to both the court and claimants solicitor.

[AndyOrch]

Excellent ...well just revert back to the directions......we have seen a few lately overturning the strike out for no fee...makes the new directive from the court a joke really.

 

We will proceed.

[Musicam]

Thanks Andy

[Musicam]

Hoist have put both claims on my credit file with noddle, with the totals including the interest they are claiming and the default dates as recent as last month. Can they do this without actually getting a judgement?