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** DISCONTINUED ** Hoist Portfolio Holding v Shinybee

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  • #91
    Re: Hoist Portfolio Holding v Shinybee

    Originally posted by warwick65 View Post
    I'm not being specific here but it could be used to explore other avenues depending on what is good for you.

    I do find the whole situation odd, two Barclaycard in your name, both have always been Barclaycard and both have similar amounts outstanding. Then both assigned to Hoist and both with the same defence.

    Reading back, did you send two cca requests both with the fee? I am sure they can put together a recon for 8k.

    Yes 2 separate cca request with fees sent to their jersey address

    What's odd? That they didn't combine them?

    Comment


    • #92
      Re: Hoist Portfolio Holding v Shinybee

      You need to keep both these claims as small claims, otherwise if you lose, you will also pick up the other sides costs.

      However, I stand by what I said in a previous post, which is that even if the two claims are merged to be dealt with separately, small claims rules will still apply.

      Each claim, regardless of how similar they are, relates to separate issues and if the court merges them to dispose of them simultaneously, it would be for the convenience of all concerned, being you, the "other side" and the court itself.

      It would be fundamentally wrong and unfair to make it into a Fast Track claim, as it would help the other side enormously and weaken you.

      Anyway, if you have a date for just one of the claims, I would just go along with it and not mention the other.

      You should also really go to town on the documents. It is up to the claimant to prove its claim, so they should provide everything you ask for. So I would want to see a copy of the credit agreement, copies of every single statement for the period in question and copies of all correspondence, including letters of assignment.

      The copy of the credit agreement is the most important. Following Carey v HSBC Bank in 2009, the bank can provide a "true copy" of the agreement if it cannot produce the original signed copy.

      Although this decision was proclaimed at the time by the debt industry as a sound judgment, there have been numerous examples of lenders putting forward things that were definitely not "true copies". Bluntly, that decision has turned out to be a liar's charter.

      With modern systems everyone does document scanning, so in my view if a bank cannot produce a photocopy of the original agreement, it should at least provide a scanned copy.

      In my case, I have a dispute in which I requested a copy of the agreement three times and each time I was sent something different! Eventually they managed to produce a scanned copy of the original, which was totally illegible and which did not include all the relevant terms and conditions. So they are f'cked and they know it! But it didn't stop them from trying it on initially and bluntly they were deliberately sending me stuff they knew was false!

      So really, the best advice to you is to absolutely go to town on the paperwork, because if you do owe the money and have no chance of paying it, it will be your only way out. The companies often trip themselves up near the finishing line, so you always have a chance.

      You have to really make the b'stards work for their money!

      Comment


      • #93
        Re: Hoist Portfolio Holding v Shinybee

        Originally posted by thedirtyhound View Post
        You need to keep both these claims as small claims, otherwise if you lose, you will also pick up the other sides costs. Costs can and are awarded even in the Small claims track

        However, I stand by what I said in a previous post, which is that even if the two claims are merged to be dealt with separately, small claims rules will still apply This is not automatic as Di explained but in any event the value of the claim is not the only reason for allocating it to a particular track

        Each claim, regardless of how similar they are, relates to separate issues and if the court merges them to dispose of them simultaneously, it would be for the convenience of all concerned, being you, the "other side" and the court itself.

        It would be fundamentally wrong and unfair to make it into a Fast Track claim, as it would help the other side enormously and weaken yours Why would it automatically be helpful to the other side and weaken SB's case - if it was fast track not only could SB potentially get a no win no fee but the rules on disclosure are different - both sides would have to disclose the info they had , this may actually be beneficial to SB

        Anyway, if you have a date for just one of the claims, I would just go along with it and not mention the other.

        You should also really go to town on the documents. It is up to the claimant to prove its claim, so they should provide everything you ask for. So I would want to see a copy of the credit agreement, copies of every single statement for the period in question and copies of all correspondence, including letters of assignment While I do not want to appear too much as a harbinger of doom remember these account are post 2007 . For the CCA request an honest recon can be produced . Additionally what is the best way to argue needed to see every single statement , I don't know of one. Naturally , i would ask for a copy of the Deed of assignment.
        Remember, defence has been entered and the next stage will be WS

        The copy of the credit agreement is the most important. Following Carey v HSBC Bank in 2009, the bank can provide a "true copy" of the agreement if it cannot produce the original signed copy. True and it can be reconstituted and does not need signatures

        Although this decision was proclaimed at the time by the debt industry as a sound judgment, there have been numerous examples of lenders putting forward things that were definitely not "true copies". Bluntly, that decision has turned out to be a liar's charter It really depends what you are expecting as a true copy - a true copy does not have to be an exact copy although yes some copies have been less than good. Remember as well, S77-79 is for information purposes only.

        With modern systems everyone does document scanning, so in my view if a bank cannot produce a photocopy of the original agreement, it should at least provide a scanned copy.I sometimes think we forget how far technology has come in the last ten years , now I can just stick a pile of documents in a scanner and scan them to file - easy , wasn't like that so long ago

        In my case, I have a dispute in which I requested a copy of the agreement three times and each time I was sent something different! Eventually they managed to produce a scanned copy of the original, which was totally illegible and which did not include all the relevant terms and conditions. So they are f'cked and they know it! But it didn't stop them from trying it on initially and bluntly they were deliberately sending me stuff they knew was false! Every case is different

        So really, the best advice to you is to absolutely go to town on the paperwork, because if you do owe the money and have no chance of paying it, it will be your only way out. The companies often trip themselves up near the finishing line, so you always have a chance.

        You have to really make the b'stards work for their money!
        Much of the above is why I think legal representation is needed, how can the average person know just how to plead a case - this is even more important if the judge does not have a full grasp of the CCA because they will be led by the representative for the claimant.

        Comment


        • #94
          Re: Hoist Portfolio Holding v Shinybee

          Originally posted by Shinybee View Post
          Hi all.

          Ok I have received a notice of a Trial Date to day for one of the claims to Small Claims Track, with and estimated hearing of 1 hour. - is that the usual amount of allotted time?

          Also saying that the court believes my case is suitable for mediation and that I have seven days to accept this offer. Should I go ahead and accept this offer, even though after accepting the previous offer of mediation we were unable to proceed due to claimant not providing documentation?
          It will be a standard hearing letter by the sounds of it. If still no documents not a lot of point going back to mediation unless you want to negotiate some kind of settlement to get this out of your hair.

          On the second page of that hearing notification there should be intructions for the exchange of Witness Statements - normally 14 days before. If the hearing fee is paid ( check with court after the 12th Dec ) then it will be a case of seeing if Docs show up with the Witness Statement as Exhibits. Check the date for WS anyway You'll need to do your WS either saying no documents ( backing up your defence) or, if docs turn up in the meantime, picking up any issues with the docs ( if they aren't all perfect and you don't decide to negotiate settlement at that point )... really it's still a case of wait and see. 1 hour is pretty normal yes
          #staysafestayhome

          Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

          Received a Court Claim? Read >>>>> First Steps

          Comment


          • #95
            Re: Hoist Portfolio Holding v Shinybee

            Hoist Portfolio is unlicensed. This legal issue alone would take more than one hour to argue in court. It's fundamental to your case.

            You don't want to run out of time so the DJ adjourns the Trial 'part heard' so that the other side has the benefit of knowing the nitty-gritty your legal arguments in advance of a re-listed Hearing.

            You don't have to wait until it's time to file a Witness Statement to take further legal steps such as Part 18 Questions. Be proactive not reactive.

            Ideally you want to box the Claimant into a corner so that they Discontinue before the need for a Hearing.

            Or (if they don't Discontinue) you set up the case so that when they lose your legal team will be in a position to ask the court to order wasted costs in the Small Claims Track.

            Compliance with s.78 is for 'information purposes' not 'proof purposes'.

            In my Santander v Mayhew case I lost the s.78 legal argument (because they had produce documents) but won on different legal arguments because the documents produced were flawed and there was no OFT leaflet with the Default Notice (and other arguments).

            People often focus solely on the credit agreement when there are many more other ways to defeat a claim.

            Have you been receiving an annual Notice of Sums in Arrears (s 86)?

            I would want to see the Barclaycard Deeds since the conditions in a Deed can be relevant.

            We usually request a one day Hearing to deal with all the issues.

            Di

            Comment


            • #96
              Re: Hoist Portfolio Holding v Shinybee

              Originally posted by Amethyst View Post
              need to do your WS either saying no documents ( backing up your defence) or, if docs turn up in the meantime, picking up any issues with the docs ( if they aren't all perfect and you don't decide to negotiate settlement at that point )... really it's still a case of wait and see.
              If the Claimant discloses documents at any stage after a Defence has been filed then the Defendant should file an Amended Defence since you cannot introduce new legal arguments in a Witness Statement.

              The DJ will decide the case based on the Defence filed at court. From what I can tell the OP's Defence more or less says the Claimant has not provided the documentation to prove their case.

              I've not seen the Defence but if there are assignment and licensing issues which have not been pleaded in the Defence then they can't be argued in court which could be a missed opportunity.

              Di

              Comment


              • #97
                Re: Hoist Portfolio Holding v Shinybee

                Well, ATM, this is an entirely standard non compliance with CCA case in small claims. IF documents show up and there are additional/new issues to be raised it can be dealt with then by amendment or whatever is most appropriate at that time, It's not really complicated by there being two claims. They haven't been joined thus far, and no one has requested them to be joined - they just both happen to have the same facts atm.

                DEFENCE is pretty standard and posted here > http://legalbeagles.info/forums/show...l=1#post748932
                #staysafestayhome

                Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                Received a Court Claim? Read >>>>> First Steps

                Comment


                • #98
                  Re: Hoist Portfolio Holding v Shinybee

                  Originally posted by Shinybee View Post
                  Thank you for a quick reply Di.

                  Yes two DQs.
                  I opened them around 2013
                  I don't know if either of them have PPI

                  Here is my Defence for both:

                  In the Northampton County Court Business Centre
                  Claim No: XXXXXXX
                  HOIST PORTFOLIO HOLDING LTD :
                  Claimant
                  And
                  XXXXXX
                  Defendant
                  DEFENCE

                  1. I would initially like it be noted on the Court File, I responded to the Claimants Solicitor letter (Exbt 1), dated 11/05/17, with the attached Pre Action Conduct letter (Exbt 2), dated 21/05/17, requesting further information regarding the alleged debt. The Pre Action Conduct request was sent by Royal Mail Sign For (Exbt 3) and received by Claimants Solicitors and signed for on the 24/05/17 by XXXX.(Exbt 4).

                  2. To date, Howard Cohen & Co, the Claimants Solicitors have failed to Acknowledge Receipt of Service this Request for Further Information and have failed to respond to the request. To ignore such a request, which was clearly received, and proceed with a claim is, in my opinion, an abuse of the court process.

                  3. On 10/7/17 I received the claim XXXXXX from the Northampton County Court Business Centre showing the Claimants total disregard for my Request for Further Information made under the Practice Direction – Pre Action Conduct as they commenced proceedings against me.

                  4. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this defence.

                  5. The Defendant alleges that the Claimants pleadings are an abuse of the process. The Claimants pleadings are lacking in detail, there are no details to when the alleged default occurred, despite requests for information from the defendant, and the Claimant has not provided any details as to how the sums have accrued. Accordingly the Defendant contends that the pleadings are wholly inadequate for a contested matter and that the Claimant should be required to plead its case coherently and accurately as required by the CPR 16 and PD 16. The Defendant reserves the right to replead his defence should the Claimant replead its claim adequately.

                  6. This claim appears to be for a Credit Card agreement regulated under the Consumer Credit Act 1974 but the defendant is unable to identify such an account within his own records.

                  7. The particulars of claim fail to state when the agreement was entered into.

                  8. The particulars of claim state that the account was assigned by Hoist Portfolio Holding Ltd. on a date not provided, and notice served. The Defendant does not recall receiving notice of this assignment.

                  9. Upon the Claim clarifying matters set out above the defendant reserves his position to amend this defence further. The Defendant shall seek the cost of the amendments from the claimant due to the Claimants failure to plead its case adequately.

                  10. The Defendant sent a request for inspection of documents (Exbt5) on the 18/07/17, by Royal Mail Signed For (Exbt 6) to the Claimants solicitors under Civil Procedure Rule 18.

                  11. The Claimants Solicitors received this Request and was signed for by XXXX on 19/07/17 @11:05 (Exbt 7) but has not been replied to.

                  12. Also on the 17/07/17 the Defendant sent requests for information (Exbt 8) to the Claimant, by Royal Mail Sign For (Exbt 9a), enclosing the statutory £1 fee (Exbt 9b). The request was made pursuant s78 (1) Consumer Credit Act 1974 to ascertain the agreement, which the Claimant was demanding payment under, and to obtain further information about the terms of the contract.

                  13. The Claimant received and Signed For the said Request on 18/07/17 (Exbt 10) but failed to reply and has not disclosed any documents relating to their claim to the Defendant.

                  14. Accordingly the Claimant has failed to comply with s78 (1) Consumer Credit Act 1974 to date and by virtue of s78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

                  15. The Defendant has not yet been able to examine the terms and conditions which were enforce at the time that the agreement was executed and therefore reserves the right to amend these pleadings to address any breaches that are identified if such terms or conditions are disclosed by the Claimant. The amendment will be due to the lace of disclosure by the Claimant and the failure to respond to the s78 CCA 1974 request correctly and the Defendant therefore also reserves the right to claim the costs of such amendment from the Claimant.

                  16. For the avoidance of doubt the Defendant requires the Claimant to plead effectively and disclose the legible documents upon which the Claim is based. In the event the Claimant fails to replead, then the Defendant reserves the right to apply for whatever orders it deems fit including an order striking the Claim out.

                  17. It is denied that the original creditor, Barclays Bank Plc, served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

                  18. Due to the Claimants failure to allow the Defendant to inspect the Default notice alluded to within the Claim form the Defendant is prejudice.

                  19. Accordingly the Defendant reserves his position to amend this Defence with the costs of the same paid by the Claimant provides a copy of the Default Notice.

                  20. The Defendant denies monies are owed to the Claimant as alleged in the Particulars of Claim and does not recognise the assertion that any debt has been Legally Assigned to the Claimant. As per Civil Procedure rules 16.5(4), it is expected that the Claimant prove the allegation (as set out in the Particulars of Claim) that the money is owed.

                  21. The Claimants statement of case fails to give adequate information to enable me, the Defendant, to properly assess my position with regards to the claim.

                  22. Therefore, I respectfully apply under Section 4.6(1) of the Practice Direction Pre-action Conduct for the proceedings to be Stayed with immediate effect until the Claimants comply fully with the Request for Further Information made.

                  23. It is denied that the Claimant is entitled to the relief as claimed or at all.

                  Statement of Truth

                  The Defendant believes that the facts stated in this Defence are true.

                  Signed ________________________________
                  Dated ________________________________
                  There is the defence

                  Comment


                  • #99
                    Re: Hoist Portfolio Holding v Shinybee

                    Originally posted by Amethyst View Post
                    this is an entirely standard non compliance with CCA case in small claims. IF documents show up and there are additional/new issues to be raised it can be dealt with then by amendment or whatever is most appropriate at that time
                    My point was that there is more then one way to litigate. I favour requesting disclosure not waiting for it to show up.

                    If the Claimant can't comply with any request for disclosure then the Defendant can ask the court to force disclosure or strike out the claim.

                    I can't agree that this is an entirely standard non compliance with CCA case when there are also licencing and assignment issues and potentially non compliance with s. 86. too (was there PPI?).

                    If these were argued successfully then the claim would be unenforceable in court even if the credit agreement was rock solid in legal terms.

                    Di

                    Comment


                    • Re: Hoist Portfolio Holding v Shinybee

                      Thanks everyone for all your input.


                      Have just received now documents from Hoist proclaiming to enclose:

                      - Reconstituted Credit Agreement
                      - Statements of account
                      - Default Notice
                      - Notice of Assignment

                      Comment


                      • Re: Hoist Portfolio Holding v Shinybee

                        Can you redact and post these up?

                        You may probably need to amend your defence now

                        Comment


                        • Re: Hoist Portfolio Holding v Shinybee

                          In my view the statements and credit agreement are of paramount importance. It is a credit card account and so the claimant should be made to prove that the sum claimed is correct. Is it sufficient to let them say that "we bought this debt off Barclays and therefore the balance must be assumed to be correct"? As for the credit agreement, the "true copy" needs to be just that - A TRUE COPY! There have been numerous instances whereby copies produced by claimants have been anything other than true. It really needs an expert eye to go over things in that regard. It is very unusual for costs to be awarded in small claims hearings and usually only happens when someone has acted totally unreasonably or lied. If a case is listed on the fast track, the claimant has the option to get a good barrister to present the case, whereas in the small claims track they are more likely to use their own in house legal team. Finding a solicitor to take on a case like this on a no win no fee arrangement would be difficult in my view, especially at this stage. As things stand, the chances look to be 50:50 at best. You have to find a hole in their case to defeat it and tripping them up over the documents is the only way. If you can't do that, you are better off trying to do a settlement deal with them rather than lose and end up owing even more. That is less easy when matters have got this far, for they will hold out for a higher sum than they might have done before the claim was issued. The Howlett Clarke people are amongst the very best when it comes to matters like this, so I think it would certainly be worth a call to them. I see that Di from Joanna Connolly Solicitors has also made some posts on here, so it may also be worth a call to her. These firms are real experts in this field and the debt purchasers don't like dealing with them. You need to get someone with the know how to go through the documents with a fine needle to find the weakness that you need.
                          Last edited by thedirtyhound; 8th November 2017, 17:25:PM. Reason: spelling error

                          Comment


                          • Re: Hoist Portfolio Holding v Shinybee

                            Originally posted by Shinybee View Post
                            Thanks everyone for all your input.


                            Have just received now documents from Hoist proclaiming to enclose:

                            - Reconstituted Credit Agreement
                            - Statements of account
                            - Default Notice
                            - Notice of Assignment
                            Good timing

                            Much better to get them now than when they send WS's. Should be able to completely review your case now and where you stand, rather than guessing Can you redact the agreement and post it up ( the DN too if poss ). Docs for both cases or just one of them ?
                            #staysafestayhome

                            Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                            Received a Court Claim? Read >>>>> First Steps

                            Comment


                            • Re: Hoist Portfolio Holding v Shinybee

                              ugh.. trouble uploading....

                              Comment


                              • Re: Hoist Portfolio Holding v Shinybee

                                Too big? Do you want to email it to me - sharon@celame.co.uk ( or admin@legalbeagles.info but it's a bit slow at the moment)
                                #staysafestayhome

                                Any support I provide is offered without liability, if you are unsure please seek professional legal guidance.

                                Received a Court Claim? Read >>>>> First Steps

                                Comment

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