Hoist Portfolio v Rubix

[Rubix]

Issue Date: 6^th September 2016

Amount Aprox: £1269

Claimant: Hoist Portfolio Holding 2 Ltd

Solicitor: Howard Cohen and Co

Original Creditor: HSBC

Particulars: This Claim is for the sum of £756.37 in respect of monies owing pursuant to an overdraft facility under bank account no. xxxxxxx.

The debt was legally assigned by MKDP LLP (ex HSBC) to the claimant and notice has been served. The defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

Is the debt Statue Barred: Yes – final demand letter issued on 6^th April 2010. Account closed no further payments made or letters acknowledged.

Any other information: The amount claimed was less than the original amount by £56. So I had a look back through all the letters I’ve received about this debt and found a statement from MKDP from 2014 stating two small payments had been made. I know 100% that I did not make these two payments. The payment summary just says the date, amount and description ‘payment to original creditor’.

I’ve gone through all my bank statements from around the date the summary says and neither show up on any statement. The payments never showed up on my credit file either.

So Far:
Since receiving the claim form I’ve completed the acknowledgment of service and contacted citizens advice and the national debt line as well as doing a lot of reading. Citizens advice told me to send a CCA request but I’ve read this doesn’t apply to overdrafts? The national debt line told me to seek legal advice if I wanted to file a defence.

I’m hoping someone will be able to point me in the right direction.

Would the next step be to send a letter requesting all information held?

My original plan was to file a statue barred defence, would this still be recommended even though I have this statement of account that says a payment has been made within the last 6 years?


Many Thanks

[Rubix]

Hoist Portfolio v Rubix

BUMP!

:doggieyes:

[Kati]

Re: Hoist Portfolio v Rubix

tagging [MENTION=87380]Diana M[/MENTION] [MENTION=7765]Joanna C[/MENTION] [MENTION=6]Amethyst[/MENTION] xx

[MIKE770]

Re: Hoist Portfolio v Rubix

ask for proof of these Phantom payments i.e. How paid/by whom/cheque/cash/postal order/method of payment via what bank etc, the onus of proof is on them, send request Recorded Delivery

[Amethyst]

Re: Hoist Portfolio v Rubix

Hi Rubix xxx

You are correct, the CCA request does not apply to an Overdraft.

It does sound like the debt could be statute barred. You still have two weeks before having to file your defence.

You should send a CPR 31.14 request ( CPR 31.14 Request) requesting the ''terms and conditions of the bank account''. As they haven't mentioned anything else you couldn't really ask for much else under the CPR. Add on to the letter that the debt is statute barred. I'd hold off on any request about evidencing these 2014 payments until you have something back from the claimant stating these 2014 payments. They may not pick up on it, or if they do, you can respond to them at that point asking for evidence of the payment method etc as Mike suggests. If they come back and state it was paid by debit card or bank transfer then you can evidence from your bank statements that this is untrue ( so far as your records show)

Have you had the same account throughout ?
Ever been in any debt management plan ?

[Rubix]

Re: Hoist Portfolio v Rubix

Hi, Thank you for taking the time to respond Kati, Mike770 and Amethyst.

I've sent off the CPR 31.14 request and added on about the debt been statute barred.

Have you had the same account throughout ?
I had two current accounts at the time and still have and use these today. Also had no credit card at the time.

Ever been in any debt management plan ?
No I've never been in a debt management plan. Never spoken to anyone about this account after it was closed.

[Amethyst]

Re: Hoist Portfolio v Rubix

Okay good

You will want to keep hold of your bank statements on both those accounts for the dates those payments were allegedly made so you can evidence to the court that they weren't ( well not from your bank accounts anyway)

[Rubix]

Re: Hoist Portfolio v Rubix

Hi,

I've had no response to the CPR 31.14 request or statute barred letter. Should I now file a statute barred defence?


Many Thanks

[charitynjw]

Re: Hoist Portfolio v Rubix

The 33 day deadline is Sunday 9th October.

You could tweak the defence example at the top of this thread to include SB & post a copy (personal details removed) if you like.

[Rubix]

Re: Hoist Portfolio v Rubix

Hi Charitynjw,

Would I need to submit the defence today with the deadline been a Sunday?

The defence I've put together is below.

1. The Defendant received the claim XXXX from the Northampton County Court on 9^th September 2016

2. The Claimant failed to provide particulars as to when the amount sought by them arose. 



3. The Defendant sent a request for inspection of documents mentioned in the Claimants statement of case under Civil Procedure Rule 31.14 to Howard Cohen and Co on 20^th September 2016. The defendant requested the Claimant provide copies of the terms and conditions of the overdraft.

4. The Claimants solicitor, Howard Cohen and Co has not sent any of these documents to the Defendant.

5. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed

6. The Defendant requests the court orders the Claimant to provide the necessary documentation or the Claim should stand struck out.

7. The Defendant also submits that the Claimant’s claim falls foul of section 5 of the Limitation Act 1980 in that the cause of action accrued prior to 6th September 2010.

8. According to the Defendants records no payment or unequivocal written acknowledgment has been made in regard to the alleged debt since April 2010.

9. It is therefore submitted that the Claimant’s claim is stature barred.

10. The Claimant seeks dismissal of the claim and £95 in costs in respect of the time spent on this matter. The Defendant submits the claim for costs is entirely justified in that the claim has been issued by a firm of solicitors who should have had knowledge that it was time barred.

Would this be acceptable?


Many Thanks

Rubix

[Rubix]

Re: Hoist Portfolio v Rubix

UPDATE: Received a letter from Howard Cohen & Co Solicitors dated 10th October 2016.

We acknowledge receipt of your letter dated made under C.P.R. 31.14 for documentation mentioned in our Particulars of Claim.

We are currently in the process of retrieving the documents requested.

Therefore, please accept this letter as our agreement to a general extension of time. Once we have provided you with the documents required we will grant a further 14 days for you to respond to the Claim Form as you feel appropriate.

[Diana M]

Re: Hoist Portfolio v Rubix

UPDATE: Received a letter from Howard Cohen & Co Solicitors dated 10th October 2016.

Did you file your Defence on time and serve a Howard Cohen with a copy?

Di

[Rubix]

Re: Hoist Portfolio v Rubix

Hi Di,

Yup, filed a defence on the 7th of October and received a letter from the court saying a copy was being served to the claimant.

What will happen next, do I need to wait for the documents from the solicitor or do they respond to the defence now that it has been submitted?

[Diana M]

Re: Hoist Portfolio v Rubix

Hi Di,

Yup, filed a defence on the 7th of October and received a letter from the court saying a copy was being served to the claimant.

What will happen next, do I need to wait for the documents from the solicitor or do they respond to the defence now that it has been submitted?

That letter you received from the court should also have explained that the Claimant has 28 days to inform them if they wish to continue with these proceedings. If they don't inform the court by the deadline then the claim is automatically stayed (a pause button on the proceedings).

If any paperwork arrives from Howard Cohen then post on your thread. They'll probably be scurrying around looking for evidence to prove the debt is not SB.

Di

[Rubix]

Re: Hoist Portfolio v Rubix

Brilliant, thank you