HPH2/cohen claimform - old tesco Mastercard debt***Settled by Tomlin Order***

[obvious]

Re 'out of time now', how do I determine that?

 

Yes, all bar one from claimant.

 

I did have an n180 which was completed and returned.

 

Does the most recent notice of assignment help ie claimant has changed since filing?

 

Uploads to follow...

[dx100uk]

so moving fwd if you've filed in your N180

did you copied it to Cohen's.

 

so no date yet for mediation?

[obvious]

I'm afraid I did not copy my N180 to Cohens

 

I received an EX730 offer of mediation but did not fill it out.

 

Please see attached PDF

Scan 27 Oct 2018.pdf

[dx100uk]

had to hid that

you must read UPLOAD and redact things!!

 

you did agree to mediation on the N180

when did you send it and do you still have a copy?

why have left things a month to comeback...

[obvious]

I've failed to do some stuff including keeping proper records and seeking advice at each stage. I'm sorry about that.

 

I received "Notice of Proposed Allocation" N149A on or around 30/09 which stated it was now a defended claim.

Within a few days I filed the enclosed N180 with the court office.

 

I do not have a copy.

 

I checked the box disagreeing to mediation on N180 as per attached image.

Although now I have a nagging doubt whether I actually ticked the box or not.

 

I left it so long to post here because

 

A. I'm an idiot

B. I told myself it was OK to just file with my preference on mediation without posting here first or sending a copy to the claimant (see A)

C. There was some flooding here which I had to deal with. You may have seen it on the telly.

D. I didnt think I was up against the clock

[AndyOrch]

Have you received your Notice of Allocation yet ...N157 ?

 

 

Andy

[obvious]

Not yet. The latest is a Notice of Transfer or Proceedings to local court for allocation - N271

 

I'm hoping to avoid going to court and just get a ruling on the papers or whatever its called without being there in person.

Frankly it's intimidating.

 

I've got a bunch of mental health problems and I also wouldn't want to say something potentially incriminating etc.

I wonder if I should communicate anything to that effect to the court?

I put a zero in the box for 'number of people attending court' and so did the claimant

Edited October 27, 2018 by dx100uk
spacing

[AndyOrch]

Claimant always put nil...but they will be attending and will win if you dont show.

[dx100uk]

opps then..you should have entered into mediation really

and put 1 wit you.

you really should be attending

 

but I suppose with +£5k debt and a 2008 takeout date

unless there is something seriously wrong with the CCA agreement return you have? scan it up please as asked

 

this is looking like you might have to fold on this and admit you owe it and come to some deal p'haps thru a tomlin.

 

lets see

[obvious]

Ok, here's my best at scanning and redacting. I don't have a scanner but it seems readable.

 

Back to my question about the change of company name in the latest notice of assignment. Does it matter that the claimant is no longer the debt owner?

Scan 27 Oct 2018 (1).pdf

[obvious]

If that pdf isn't good enough I'll do it in better light tomorrow

[obvious]

Another try. Less processed

creditagreement+letters.pdf

[dx100uk]

if you read other threads particularly regarding HPH2 you'll see that lots of people have had their debts shuffled around the same Group to their UK wimg

sadly as far as I am aware that means little toward a court claim.

 

the only thing I've seen that's not shown its head to date is the default notice yu asked for in our CPR that you sent..

 

that in previous court cases has proved fatal the fleecers but you need to exploit that in your WS at disclosure stage if they don't produce it in their exhibits.

[obvious]

Regardless of the outcome I'd just like to say thanks to yourself @dx100uk , @Andyorch and of course everyone who makes CAG what it is. I'll be making a donation.

 

Enough of the effusive heartfelt gratitude though, I will attend court and give it my best shot.

 

What's the next move?

 

Ps, I've got 'Amused to Death' playing

[AndyOrch]

Notice of Allocation and the courts directions which you must comply with by the dates stated.

[jon8214]

there also doesn't appear to be the NOA from Tesco to HPH2

 

only HPH2's side not the one issued from Tesco itself

 

also those T&C's appear very short to me

[obvious]

Today - 07/11/18

 

Received from Court:

 

Notice of Allocation to small claims track dated 06/11/18.

Claimant has until 05/12/18 @4pm to pay the court fee or the claim will be struck out

Hearing @ 11:30am on 02/01/19

 

All documents upon which parties intend to rely on and witness statements including my own (if I choose) to be provided by 2pm on 11/11/18 (This Sunday)

 

Settlement: Hearing may be set aside, varied or stayed by issuing form N244 (with fee or exemption) no later than 7 days after the date of service of this order.

 

Mediation: The court believes that your case is suitable for mediation if applied for within 7 days of receipt of this order ie 14/11/18.

 

Received from Claimant:

 

Further response re CPR31.14 dated 06/11/18 including original default notice dated 22/01/13 from Tesco Bank + accompanying contemporaneous terms and conditions.

 

They invite me to withdraw my defence and complete and return evidence of means form within 14 days ie 20/11/18

[dx100uk]

you'd better get moving then and do your witness statement.

can you put EVERYTHING they have returned either to the CCA request or under the CPR into ONE multipage PDF please

 

then we can advise.

[AndyOrch]

" All documents upon which parties intend to rely on and witness statements including my own (if I choose) to be provided by 2pm on 11/11/18 (This Sunday) "

 

Does it really state that ?

 

Andy

[obvious]

No, I was paraphrasing

[obvious]

you'd better get moving then and do your witness statement.

can you put EVERYTHING they have returned either to the CCA request or under the CPR into ONE multipage PDF please

 

then we can advise.

 

Sorry for delay. I've been on it all day but had to get a scanner etc.

 

I received no response to my CCA request.

Neither did I receive original NOA copy

 

See attached CPR 31.14 responses etc

 

Note: I have not included copy credit card statements as there are loads. Please advise if these are required.

returns.pdf

[obvious]

Does page 7 of the response to CPR31.14 pdf count as a Notice of Assignment from Tesco to Hoist? I mean does it prove they are the creditor or do they need to provide a notification letter direct from Tesco to me?

 

On what basis do they claim to be the creditor?

[dx100uk]

NOA is ok yes.

they are the creditor as they assume all rights upon purchase.

 

puzzles me why they've included a copy of a reply form agreement with you needing to sign and return mind...

 

thread tidied

[obvious]

OK with witness statements due by this Sunday at 2pm I guess time is now of the essence.

 

I feel like I'm clutching at straws given the Claimant's returns so would appreciate any and all thoughts re my next steps.

 

I've started to prepare a witness statement but it is woefully thin. How can I make it more substantive?

 

IN THE County Court at XXXXX

Claim No. XXXXXX

BETWEEN:

Hoist Portfolio Holding 2 LTD

Claimant

 

AND XXXXXX

Defendant

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

 

_________________________ ________

 

WITNESS STATEMENT OF XXXXXX

_________________________ ________

 

 

I XXXXXX, 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 claimant is an Assignee a buyer of defunct or bad debts which are bought on mass portfolios of debt at much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

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 debt (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 01 August 2018, I received a claim form from the County Court Business Centre, Northampton, for the amount of £xxxx.50. The claimant contends that the claim is for the sum of £xxxx.50 in respect of monies owing under an alleged agreement with the account no. XXXXXXXXXX pursuant to The Consumer Credit Act 1974 (CCA).

 

3. Contained within The Claimant’s particulars The Claimant pleads that The Defendant has failed to make contractual payments under the terms of the agreement. There are no details contained within its particulars about when any alleged Default Notice has been served upon The Defendant pursuant to S.87(1) CCA. There are no details contained within its particulars about when any alleged Default Notice occurred or the degree of default or details as to how the sums claimed have accrued. The claimant is put to strict proof to evidence details of the default and service of any Default Notice.

 

4. The particulars of claim state the debt was assigned by Tesco Personal Finance PLC (‘Tesco’) to Hoist Portfolio Holdings 2 LTD, R/O First Floor, Le Masurier House, La Rue Le Masurier, St Helier, Jersey, JE2 4YE and that Notices were provided by way of a Notice of Assignment. The claimant is put to strict proof to evidence the details of assignment from Tesco.

 

5. On 02 August 2018 I made a formal written request to the Claimant solicitors requesting that the Claimant provides copies of all documents mentioned in the statement of case [EXHIBIT A]. I also enclosed a copy of the letter sent directly to Howard Cohen and Co. requesting a copy of my Consumer Credit Agreement as entitled to do so under sections 78 of the Consumer Credit Act 1974 [EXHIBIT B].

 

6. On 02 August 2018 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].

 

7. The Claimant has not provided Notice of Assignment from Tesco to itself only a letter written by themselves claiming to be the creditor. They are put to strict proof to the claim that they have purchased this debt and to provide such NOA from Tesco.

 

8. The Claimant provided copies of unsigned documents that were sent to me for completion in order to establish the formation of a regulated credit agreement. [EXHIBIT D]. It is argued that such documents as provided by themselves form a pillar of their argument and without being signed or dated will not stand.

 

9. The Claimants pleaded case is that the Defendant entered into an agreement with Tesco under account reference xxxxxxxxx. I am uncertain as to which account this refers to. It is accepted that I have had Credit Cards with Tesco in the past however I have no recollection of the alleged account number the claimant refers to. Therefore the claimant is put to strict proof to disclose this agreement on which it’s claim relies upon.

 

Until such time the claimant …PROVES/PROVIDES XXXX………. they are not entitled while the default continues, to enforce the agreement pursuant to section 78 of the Credit Consumer Act 1974.

 

 

Statement of Truth

 

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

 

 

Signed: _________________________ _______

 

Dated: _________________________ _______

 

Also, what else could I be doing.

 

Letter to Claimant with my personal circumstances showing they are unlikely to recover sums at any significant rate even if they win?

 

Mediation?

 

Anything else?

 

Thanks

[obvious]

I've come across another witness statement that may be of some use?

 

 

21. The letter supplied by the Claimant does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, in Schedule 6 Column 2 of SI 1983/1553:

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

 

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

For a Running Account (credit card) agreement BC and D are applicable

 

22. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

“127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

23. This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is respectfully drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

CONCLUSION

 

24. In the first instance, the Defendant request that the court exercises its discretion to strike out the Claimant’s Claim as the Claimant failed to comply with a Statutory Request under the Consumer Credit Act of 1974, thereby entering into a default situation. The Claimant is not permitted to enforce the agreement whilst the default is in place. Therefore I maintain this account has become unenforceable at law.

 

25. Alternatively the Defendant requests that no Judgement be entered against him at the hearing fixed for this matter.