pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

I have sent my witness statement and all documents to the court now, should I do the same to both the claimants solicitor and the claimant now? .

I would send it to the solicitors Howard Cohen because you don't want them to seek an adjournment at the start of the hearing on Wednesday to deal with your "late discloser" which would give them more time to find the paperwork.

I've not looked at what you've included in your WS and what Exhibits you've attached to it, but wouldn't it be nice if they take fright when they read it and decide to Discontinue the claim.

One can but dream

Have a nice weekend.

Di

PS I should add that I'm impressed with the way you reacted when I raised the issue that you hadn't filed your WS due last week so needed to file it by 4 pm this afternoon. You remained cool, calm and collected, and got on with the job.

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

That would be nice, I'm not overly optimistic though. I wouldn't have thought they would pay the court fee unless they thought they had a decent chance of winning. Soon find out :/ Thanks again for your help.

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

I have just received Hoists witness statement. One of the points reads, 3. In the Matter of Carey vs HSBC, a creditor can satisfy its duty under s.78 of the Consumer Credit Act 1974 by providing a reconstituted version of the executed agreement which may be from sources rather than the actual signed agreement itself. The agreement is therefore rendered enforcable and the amount due under the same is fully recoverable.
Another one reads, The claimant notes the content of the Defendant's allegations in his defence, particularly that the claimant has failed to comply with s.78 of the act. However, I respectfully draw the Court's attention to the above mentioned paragraphs and exhibits which details the Defendants contractual liability in this matter.
They have enclosed copies of a letter saying the account was assigned from barclaycard to mkdp, a default notice from mercers dated 2011, a printed what looks like a barclaycard statement but its not a barclaycard statement if that makes sense, just has the details on, an unsigned barclaycard agreement, a notice of assignment from mkdp to hoist, and a letter from robinson way.

Is what they're saying true? All I have to take with me is my CCA requests, CPR requests and proof of posting. I thought if they couldnt render the CCA agreement it was unenforcable but they seem to be arguing otherwise.

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Also, all of the documents are dated 3/2/2017 so they have missed the fourteen day window as well, what are the chances a judge would refuse all documents as they dont comply with the order? Slim given I missed the deadline as well? Upon further research it would seem the reconsituted agreement would need my name and address on it, the copy of the barclaycard statement is the only thing which has my name and address on other than the letters. No letters were sent by recorded delivery and I dont recall receiving them.

[pt2537]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Also, all of the documents are dated 3/2/2017 so they have missed the fourteen day window as well, what are the chances a judge would refuse all documents as they dont comply with the order? Slim given I missed the deadline as well? Upon further research it would seem the reconsituted agreement would need my name and address on it, the copy of the barclaycard statement is the only thing which has my name and address on other than the letters. No letters were sent by recorded delivery and I dont recall receiving them.

Hoist always seem to struggle with these cases, if you read my blog youll see that me and Tom Brennan often have success against them when they try to reconstitute an agreement.

[Joanna C]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Hoist always seem to struggle with these cases, if you read my blog youll see that me and Tom Brennan often have success against them when they try to reconstitute an agreement.

As indeed do we and not just with Hoist. The problem seems to be that they issue claims without first obtaining the documentation to check whether its enforceable or not. Problem is the legal arguments as PT knows can be pretty technical to put before the court.

It would be a good idea to write down the argument you are going to put to the court so that you don't get flustered. As Hoist have served late you could ask the court for an adjournment for time to get advice on the enforceability of the documentation they have provided.

[pt2537]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

As indeed do we and not just with Hoist. The problem seems to be that they issue claims without first obtaining the documentation to check whether its enforceable or not. Problem is the legal arguments as PT knows can be pretty technical to put before the court.

Quite, its one thing reading a case off the forum or a blog, its another entirely arguing in Court, thats where most fall down

[Joanna C]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Quite, its one thing reading a case off the forum or a blog, its another entirely arguing in Court, thats where most fall down

Totally agree with you PT - the court room is often a bear pit for the unwary or untrained!

[pt2537]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Totally agree with you PT - the court room is often a bear pit for the unwary or untrained!

haha
isnt it just, and it can be a headache for those legally trained on some occasions

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Also, all of the documents are dated 3/2/2017 so they have missed the fourteen day window as well, what are the chances a judge would refuse all documents as they dont comply with the order? Slim given I missed the deadline as well? Upon further research it would seem the reconsituted agreement would need my name and address on it, the copy of the barclaycard statement is the only thing which has my name and address on other than the letters. No letters were sent by recorded delivery and I dont recall receiving them.

If your hearing is tomorrow and the Claimant has only just served you today with their WS (never mind what date they've put on it) and disclosed the documents you requested on 1st August 2016 (i.e. over six months ago) then consider whether you should ask the DJ to adjourn the hearing to give you time to take advice on the late disclosure by the Claimant (24 hours before the hearing) as to whether you need to file an Amended Defence in the light of their new evidence.

Yes you filed your WS late but you're a LIP whereas Howard Cohen is a firm of solicitors so should know better.

If you want an adjournment then ask for it at the beginning of the hearing. A solicitor would probably ask them to consent to an order to vacate the hearing and warn them of the costs consequences if they don't agree and the DJ allows the adjournment. However as a LIP it's difficult to go on the warpath with the other side.

You could ask the DJ not to accept their late evidence, assuming they filed the WS at court today too.

Check with the court that your WS has been placed on the file and also ask whether the Claimant's WS has been received by the court. You posted on Friday (3rd February) that it hadn't been received when you rang the court.

While you're thinking about all that can you post up a copy of the agreement (with all your personal details redacted) to see what they're relying on tomorrow.

Di

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

My WS has not been placed on file, the secretary(?) asked what time I had sent them, found them on the computer and said she would print them off now and make sure they are on the desk for tomorrow. The claimant has filed there witness statement today. The agreement has none of my details on it and is just a generic barclaycard application I think. I will take a photo and upload it now.

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Take three copies of your WS and Exhibits with you to tomorrow's hearing in case the person you spoke to doesn't do what she said she'd do. It's a good job you rang the court

One copy for the DJ (hand it to the court clerk on arrival), one for the Claimant, and one for yourself.

If the court told you that they'd only received the Claimant's WS today let's hope the DJ is made aware of that fact. It supports your argument that you only had the Claimant's WS served on you today too.

Di

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

I've taken the photos down im not comfortable leaving them on a public forum, I'll see how it goes tomorrow.

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Upon further inspection of the reconstituted agreement sent to me, it has no information regarding credit limit and has no signature. After looking around the internet I found this,
' The emphasis in the Carey case on section 78 appears to have obscured the real claim that exists under section 61(1)(a) and 127(3) of the Act. These sections dictate that a creditor must be able to produce a signed document (not necessarily the credit agreement) that contains the prescribed terms. The document must include the credit limit, the interest rate and details of how and when a debtor is to discharge his payment obligations. A failure to produce such a document is still capable of rendering the agreement irredeemably unenforceable.'

So if that is correct their reconstituted agreement is unenforcable correct? Is that statement true? Is it worth me asking for an adjournment to try and pick holes in their case or is this one big enough to do it tomorrow?

My plan if I dont go for an adjournment would be to ask 1) all documents submitted after the fourteen days prior to the hearing be refused as outlined in the court order. Failing that it would be the above.

Any advice is greatly appreciated.

Also, the document has my name on it but is dated from June 2007 which is over a year before they state I entered into an agreement. Does this hold any relevance?

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

According to this they do not require a signature or credit limit hmm, if this is the case my only hope is that the judge would refuse the evidence as it was submitted late.

Originally Posted by Amethyst
(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
(2)The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;