Help needed

[supertracy]

In May this year I was sent a county court claim from 'Howard Cohen & co. Solicitors' acting on behalf of 'Hoist Portfolio' who are acting on behalf of 'Barclaycard'.
I sent the defence part back with the Statute barred letter, because I believe that this debt is over 6 years old.
I also sent them a letter for a SAR request.
I had nothing back on the SAR request even though they cashed the payment, and the only letter I got from Howard Cohen was to say in their words 'we can confirm that on 11 August 2010 a Default Notice was served upon you.As the Default Notice is the cause of this action and the claim was issued on 17 May 2016, we contend that the claim has been brought within the Limitation Period. Civil Procedure Rule 7.2.1.1 states a claimant has six years from the default date to bring their claim'

I have now received 'Claimants Witness Statement' from Howard Cohen and copies of documents with what they intend to use as evidence for CCJ case on 20th January 2017, some are : a copy of 'Credit Card Agreement' with my name & address on but not sign by me this is suppose to dated on 24th sep 2007/ copies of statements from 4/11/2010 to 7/01/2011 with the account being in arrears/ a copy of default notice sent on 11th august 2010 also copy of letter from 'Barclaycard' saying the account had been transferred to MKDP LLP on 13th May 2011.

Also reading though the statement they have said a 'Default Notice' was sent on 11th August 2011 but their own copy says 11th August 2010.
They are still stating 'The Default Notice' is the cause of this action and that their claim has been brought within the 'Limitation Period' and quote 'CIVIL PROCEDURE RULE 7.2.1.1 , saying the claimant has six years from default date to bring claim.

Please I need some legal advice ref this I have to send a defence and has I can see my bank records show the last payment I made was 1/02/2010.

thank you for your help

[nemesis45]

Re: Help needed

In May this year I was sent a county court claim from 'Howard Cohen & co. Solicitors' acting on behalf of 'Hoist Portfolio' who are acting on behalf of 'Barclaycard'.
I sent the defence part back with the Statute barred letter, because I believe that this debt is over 6 years old.
I also sent them a letter for a SAR request.
I had nothing back on the SAR request even though they cashed the payment, and the only letter I got from Howard Cohen was to say in their words 'we can confirm that on 11 August 2010 a Default Notice was served upon you.As the Default Notice is the cause of this action and the claim was issued on 17 May 2016, we contend that the claim has been brought within the Limitation Period. Civil Procedure Rule 7.2.1.1 states a claimant has six years from the default date to bring their claim'

I have now received 'Claimants Witness Statement' from Howard Cohen and copies of documents with what they intend to use as evidence for CCJ case on 20th January 2017, some are : a copy of 'Credit Card Agreement' with my name & address on but not sign by me this is suppose to dated on 24th sep 2007/ copies of statements from 4/11/2010 to 7/01/2011 with the account being in arrears/ a copy of default notice sent on 11th august 2010 also copy of letter from 'Barclaycard' saying the account had been transferred to MKDP LLP on 13th May 2011.

Also reading though the statement they have said a 'Default Notice' was sent on 11th August 2011 but their own copy says 11th August 2010.
They are still stating 'The Default Notice' is the cause of this action and that their claim has been brought within the 'Limitation Period' and quote 'CIVIL PROCEDURE RULE 7.2.1.1 , saying the claimant has six years from default date to bring claim.

Please I need some legal advice ref this I have to send a defence and has I can see my bank records show the last payment I made was 1/02/2010.

thank you for your help

Good morning, welcome to LB.

Some points:

1. Hoist now owns the debt as Barclaycard has sold the debt to them.

2. The claimant has 6 years from the cause of action. I believe that they are relying on an Appeal Court Judgment in BMW Finance Ltd - v - Hart where is was decided that the default date was the cause of action in regard to the relevant 6 year period as stated in the Limitation Act 1980, However this case was in regard to an hire purchase debt not a simple contract such as a credit card.

3. In my opinion the relevant 6 year period for a simple contract starts when the credit can issue a default notice e.g. after 2 missed payment and no further payments or written acknowledgments of the debt being made. The meaning of CPR 7.2.1.1 I is I believe that the relevant 6 year period starts when the account fall in to default i.e. when payments ceased not when a defaults is registered as this can be up to 6 months after the cessation of payments. Barclaycard are known for leaving accounts dormant for lengthy periods before defaulting them.

IMPORTANT> Have you not filed a defence, if you have not done so then there's going to be problems, as Witness Statements are exchanged not less than 14 days prior to a hearing???

I'm hoping that you are referring to your WS not a defence.

nem

4. Do you know when payments ceased completely?

- - - Updated - - -

The argument re BMW - v - Hart should be part of your WS.
Have you had notice of a hearing date?

nem

[supertracy]

Re: Help needed

Hi
Thank you for your help.
'Notice of Allocation to the small claims Track' (hearing is set for 20th January 2017, I only received the Defence 'Witness statement' on the 28th December 2016 it was posted on the 21st.
On the paper work I got from the court it does not say anything about WS being exchanged 14 days before sorry did not know this, it only mentions that if I do not intend to attend the hearing I need to let them know 7 days before the hearing.
The only defence I filled is when I first got the CCJ papers though the post.
The last payment I can see on my bank records is for 1st February 2010.
Not sure where I go from here

[nemesis45]

Re: Help needed

Hi
Thank you for your help.
'Notice of Allocation to the small claims Track' (hearing is set for 20th January 2017, I only received the Defence 'Witness statement' on the 28th December 2016 it was posted on the 21st.
On the paper work I got from the court it does not say anything about WS being exchanged 14 days before sorry did not know this, it only mentions that if I do not intend to attend the hearing I need to let them know 7 days before the hearing.
The only defence I filled is when I first got the CCJ papers though the post.
The last payment I can see on my bank records is for 1st February 2010.
Not sure where I go from here

What was the defence entered?

You need to prepare your WS asap, you have seen the claimants WS so have an idea of what is needed, it is your " story " of what has has happened.

nem

[supertracy]

Re: Help needed

sorry also in their WS they say 'In the absence of a copy of the Original Agreement, the claimant intends to reply upon the following case :- CAREY-V-HSBC NEUTRAL CITATION NUMBER (2009) EWHC 3417 (QB).
Not sure what this ??

- - - Updated - - -

My defence was that the Debt is 'Statute Barred'

[nemesis45]

Re: Help needed

sorry also in their WS they say 'In the absence of a copy of the Original Agreement, the claimant intends to reply upon the following case :- CAREY-V-HSBC NEUTRAL CITATION NUMBER (2009) EWHC 3417 (QB).
Not sure what this ??

- - - Updated - - -

My defence was that the Debt is 'Statute Barred'

The claimant is going to produce a " reconstituted " agreement.

What were your grounds for statute barred can you back it up?

nem

[supertracy]

Re: Help needed

was going to print out a copy of of the the bank details saying when last payment was made to this account

[nemesis45]

Re: Help needed

was going to print out a copy of of the the bank details saying when last payment was made to this account

Good idea Tracey.

A recon agreement must comply with the CCA request on the following points.

1. It must have your name and address as it was when the account was opened.

2. The creditors name and address.

3. The terms and conditions relevant when the account was opened.

4. Those relevant when the account was closed.

5. Any other documents mentioned in the T's & C's.

+ A current statement of the account i.e. the amount outstanding.
Have a go at WS and post here you can tag me and I'll go through it with you. [MENTION=55034]nemesis45[/MENTION]
nem

[supertracy]

Re: Help needed

Thank you for your help @nemesis45 have sent a pm with my attempt at a WS thank you

[nemesis45]

Re: Help needed

Thank you for your help @nemesis45 have sent a pm with my attempt at a WS thank you

Ok will take a look.

nem

[Diana M]

Re: Help needed

I sent the defence part back with the Statute barred letter, because I believe that this debt is over 6 years old.
I also sent them a letter for a SAR request.
I had nothing back on the SAR request even though they cashed the payment

May I just check that you sent a SAR (Subject Access Request) to Howard Cohen solicitors not a S 77-79 CCA Request to Hoist?

If you haven't sent a CCA Request then do that now asap. Send it to Hoist with a copy to Howard Cohen so they know it's in the air (if you haven't already done that).

It's always safer to throw in as many arguments as you can into a Defence. At the moment it appears you've only pleaded SB so you may need to amend your Defence.

How much is the claim ?

Di

[supertracy]

Re: Help needed

Hi Di
I sent a SAR request to Howard Choen with a PO for a £1 payable to them on 18/07/16, I heard nothing back from them but they must have past it onto 'Roninson Way' debt collectors because I received a letter from them acknowledging the payment on 25/07/16 of £1.00 and that it would be collected to my account, have not heard nothing since then.
The debt was org for £2,508.51 when CCj form came it went to £3,820.88 now on their WS they are saying its for £4,292.83.
Sorry what is a CCA, and will it be to late now the court date is set for January 20th

thank you for you help

[MIKE770]

Re: Help needed

consumer credit agreement

1.00 and that it would be collected to my account, have not heard nothing since then.

£1.00 should be for a copy of the CCA and cannot be credited to account it is a statuary fee for the CCA1974 copy, problem is you state SAR which is £10.00 payment and another statuary fee not able to credit to account

[Diana M]

Re: Help needed

Sorry what is a CCA, and will it be to late now the court date is set for January 20th

A SAR is a request to see all information held by the business.

A s. 77-79 CCA Request is a statutory request for specific documents the most important being a copy of the credit agreement which you originally entered into (if you did). If the creditor/claimant doesn't comply with that specific request then the debt is unenforceable in court until or unless they do comply.

It's not too late to send one so do that today and then you can reference it in your WS. Your hearing is listed for 20th January so you may be able to argue non compliance in court.

Di

PS someone on the forum will be able to link you to the Legal Beagles CCA Request template letter.

[MIKE770]

Re: Help needed

| CCA Request