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Hoist/Cohen claimform - Barclaycard

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Hi

 

So far having followed threads on here I've managed to deal with a hoist claim on a card from 2005 for £1800 before court fees on moneyclaim online for £2800.

 

 

They were supposed to have paid a fee by 15th June otherwise it would be struck out similar to a thread on here by "musicam"

 

I rang the court a few days after said date and they hadn't paid although the lady said there was some leeway in case they had paid by cheque.

 

 

I rang again yesterday still having heard nothing expecting to be told it was struck out but was informed its going ahead as they have paid the court fee.

 

 

How they are allowed extra time to do this when I have received a letter stating it would be struck out by 15th June if the fee is not paid I have no idea ?!

 

today I received hoists witness statement.

I wonder if it would be ok to send the witness statement "andyorch" provided for "musicam" as the cases seem pretty much the same.

 

In mine they also rely on Carey v HSB and concede what they have is poor quality and illegible.

 

 

They also have no default notice from the original creditor Barclaycard, only a default notice from mercers dated 18/3/11.

 

Despite the default from mercers being 2011

- The last payment to this card would have been nearly 10 years ago with no contact since

- is it too late to add any statue barred defence to this witness statement ?

 

Athe court date is the 2nd week in July.

Does my witness statement have to be in 14 days before which makes it pretty much now ?

 

Hoist also made an offer to accept £1508 full and final settlement when they sent their "evidence" which makes me think they don't really want to go to court.

 

Am I ok to go with ?

 

 

"IN THE ******* county courtlink3.gif

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 formlink3.gif 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 creditlink3.gif 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 HSBClink3.gif.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: _________________________ _______"

 

 

Any advice appreciated

 

For Info The original defence provided my myself was

 

 

"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 noted I have in the past had a contractual

relationship with MKDP LLP (Ex Barclaycard).

 

3. Paragraph 3 is denied as the Defendant maintains that a default

notice pursuant to Section 87(1) CCA was never received.

 

4. On the 18th January 2017 I made a legal request by way of

section 78 request to the Claimant. The Claimant has yet to comply

with the requested agreement.

 

I have also requested further information to clarify the claimants

claim by way of a CPR 31.14, again the Claimant has yet to comply.

 

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

 

c) show and evidence any breach.

 

5.As per Civil Procedure Rule 16.5(4), it is expected that the

Claimant prove the allegation that the money is owed.

 

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."

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should have filed the DN SB defence then you wouldn't be here now....:lol:

IMHO I would slide in the fact that it id statute barred somewhere.

 

something like, having subsequently consulted my own banking record

it has come to light that the claimaints claim is statute barred

the last payment to BC by me was dd/mm/yyyy.

 

the fact that a default notice was not issued until xx months later

does not effect the cause of action.


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I agree but at that point I wasn't sure of the date of my last payment nor the default date so didn't want to risk it - im still not because the apparent statements hoists have sent have no payments on them. Therefore I don't have a definite date to give although I would guess its 2007/8 ish. Not sure my guessing will be taken as solid evidence :)

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statute barring is down to the claimant to prove it is NOT

not for you to prove it IS


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should have filed the DN SB defence then you wouldn't be here now....:lol:

IMHO I would slide in the fact that it id statute barred somewhere.

 

something like, having subsequently consulted my own banking record

it has come to light that the claimaints claim is statute barred

the last payment to BC by me was dd/mm/yyyy

 

the fact that a default notice was not issued until xx months later

does not effect the cause of action.

 

 

Arent I also admitting the money is owed if I wade in with "my last payment was xx/xx/xx" ?

 

 

Cant I just claim its stautute barred and then its up to them to prove its not ?

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just said that.


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just said that.

 

 

 

Yes sorry I was replying as you posted

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Have you received the claimants witness statement yet ?

 

Andy


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Yes today - I have it with me

 

looking my last payment date was through a debt management agency in November 2010. So statute barred November 2016.

 

I didn't receive the moneyclaim from Hoist until January 2017 earlier this year.

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Is it possible to scan it in and upload it...redacted ?

 

I think I would adapt the above ws to incorporate the statute barred position as the main intro of the ws and then tag parts of the above ws as additional points as further argument.

 

Andy


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Will this do ?

 

I have left out the statememts, default notice they have provided cause they offer nothing more really

 

Thanks for your help. hearing is 13th of july so my WS has to be there Friday I think

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They claim you entered into the agreement 2006 ...they admit the agreement is illegible..they cant rely on a reconstituted version to enforce a pre April 2007 agreement.Again mostly hearsay evidence so para 1 of the WS you intend to adapt is relevant.This is the weak point of their statement but if you open with the statute barred argument it becomes irrelevant.

 

Have a go at a draft and post it hear to check...I will tweak it if required.

 

If we can also have their particulars of claim (verbatim)


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urm..

that's a Blackhorse card agreement

nothing at all to do with a morgan Stanley card!!


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I thought that. They are saying it's Morgan Stanley for barclaycard in the ws but what they have thrown together shows black horse.

 

Under part 2 the agreement it says

 

"This is a credit agreement between us Morgan Stanley bank international"

 

But has a black horse logo ? Confused

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Even worse they are Barclaycard Terms and Conditions...so we have....

 

WS states Morgan Stanley Dean Witter agreement entered into March 2006

 

Blackhorse agreement exhibited signed Oct 2005

 

complete with Barclaycard Terms and Conditions

 

:lol:


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I did think their ws states agreement was march 2006!but what they are providing shows 2005.

 

Can I use this in my ws ? Am I able to quote their ws in my ws ?

 

Surely I should be the one asking for it to be thrown out as they have after this ?!

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I did think their ws states agreement was march 2006!but what they are providing shows 2005.

 

Can I use this in my ws ? Yes Am I able to quote their ws in my ws ? Thats what your suppose to do..... well refer to their paragraph number then refute

Surely I should be the one asking for it to be thrown out as they have after this ?!

 

Looks like the copy paste and stitch has gone into overdrive...smacks of desperation.

 

Andy


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and the usual 620000 T&C they all rollout claiming its applicable!


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particulars of claim are as follows

 

This claim is for the sum of £1773.21 in respect of monies owing under an agreement with the account number xxxxxxx pursuant to the consumer credit act 1974

 

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 defendant pursuant to s87(1) CCA

 

The claimant claims

 

1. The sum of £1773,21

2. Interest pursuant to s69 of the county court act 1984 at a rate of 8 percent from the 25/8/11 to the date hereof 1959 days is the sum of £761.27

3. Future interest accruing at the daily rate of .39

4. Costs

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They claim you entered into the agreement 2006 ...they admit the agreement is illegible..they cant rely on a reconstituted version to enforce a pre April 2007 agreement.Again mostly hearsay evidence so para 1 of the WS you intend to adapt is relevant.This is the weak point of their statement but if you open with the statute barred argument it becomes irrelevant.

 

Have a go at a draft and post it hear to check...I will tweak it if required.

 

If we can also have their particulars of claim (verbatim)

 

 

This is my draft WS

 

 

"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. The Claimants witness statement (point 9) states the last payment received on account was on the 30th November 2010. The Claimant's claim was issued on 10th January 2017. The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980.

If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

Therefore, the Claimant's claim to be entitled to payment of £2719.48 or any other sum, or relief of any kind is denied.

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. The claimant contends that the claim is for the sum of £2719.48 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 9th March 2006 with Morgan Stanley Bank International Limited 11 years ago. The evidence they have provided by way of a signed agreement exhibited “DJH1” indicates it was 19th October 2005 with Blackhorse. Attached to this are Barclaycard terms and conditions. It is of my opinion that this “mix and match” creation can no way be taken as serious evidence of any monies owing.

 

 

4. 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.

The claimant has since disclosed a copy of the application which purports to be the agreement within its witness statement at point 4 exhibit DJH1 and admits it’s 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.

5. Furthermore the author of the witness statement at point 5 then tries to introduce a reconstituted version of the agreement (exhibit AJP1) 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 6 of their witness statement.

 

 

6. 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.

 

 

10. 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.

11. Notwithstanding that this alleged debt is statute barred pursuant to the provisions of section 5 of the limitation act 1980, the Claimants pleaded case is that the Defendant entered into an agreement with Morgan Stanley Bank International Limited 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.

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______"

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Benny I will run through the above in the morning...long day..tired mind.

 

Regards

 

Andy


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"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.

 

1.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.

 

2.It is my understanding 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 ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income.

 

3.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.

 

4.The Claimants witness statement (point 9) states the last payment received on account was on the 30th November 2010. The Claimant's claim was issued on 10th January 2017. The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

5. 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.

 

6.The claimants point 10 then goes on to explain the service of a default notice dated 18th March 2011 some 4 months later after the initial breach and uses this as the cause of action to elongate the passage of time to avoid the provisions of section 5 of the limitation act 1980 and thus turning the limitation period to 6 years and 4 months to suit the date of the claim. Receipt of this alleged default notice is denied and the claimant is put to strict proof to evidence the issuance and service of said notice.

 

The Claimants then rely on BMW v Hart to display that the termination date is the cause of action and therefore the limitation period expired on the 7th April 2017.Which now equates to the limitation period being 6 years 5 months.In reality BMW v Hart was unique to the BMW agreement type being Hire Purchase and is irrelevant with regards to section 5 of the limitation act 1980 and the CCA1974.

 

7. 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.

The claimant has since disclosed a copy of the application which purports to be the agreement within its witness statement at point 4 exhibit DJH1 and admits it’s 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.

 

8. The claimant contends that the claim is for the sum of £2719.48 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 9th March 2006 with Morgan Stanley Bank International Limited 11 years ago. The evidence they have exhibited and rely on by way of a signed agreement exhibited “DJH1” indicates it was 19th October 2005an application for a Blackhorse agreement...which is illegible despite being the wrong agreement . Furthermore the claimant exhibits Barclaycard terms and conditions which would not have been provided with original alleged agreement of a Blackhorse/Morgan Stanley Dean Witter card and are therefore invalid. It is of my opinion that this “mix and match” copy paste and stitch creation in an attempt to comply with my section 78 request is invalid and therefore the claimant is and remains in default of said request and unable to enforce or request any relief pursuant to sec 78 PD6 CCA1974 until such time they can comply and disclose the correct alleged agreement dated March 2006 which their witness statement relies upon.

 

9. Furthermore the author of the witness statement at point 5 then tries to introduce a reconstituted version of the agreement (exhibit AJP1) 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 6 of their witness statement.

 

8. The claimant tries to evade the poor quality by relying and quoting 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.

 

9. Given that this alleged debt is statute barred pursuant to the provisions of section 5 of the limitation act 1980, the Claimants pleaded case is that the Defendant entered into an agreement with Morgan Stanley Bank International Limited 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 with the correct application date on which its claim relies upon and should this not be possible it is respectfully requested that the court dismiss this claim pursuant to CPR 3.4 (2) a&b.

 

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______


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Many thanks Andy. Do I reel off a copy to cohen, the court and keep one for myself ?

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