Hoist - SUMMARY JUDGMENT SET ASIDE

[ADDLED]

Hi, well here's the 2nd of my Hoist claims; an £11k claim that they obtained summary judgment on. Ive attached copies of their docs for info...

A few notes on the agreement they provided: 2 agreements, one is supposed to be at time of signing and the other when the account was closed. I assume the illegible copy is the earlier and the clear one (dated 2012) the later, but that one has a previous address across the top of it that i havent lived at for 20 years. Illegible one looks similar to an agreement from 1997 that Amethyst showed me.

Ive a phone hearing to see if i can get the summary judgment set aside. Dyou think i have a case at all?

tks
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Amethyst pt2537 warwick65 Kati Diana M

[warwick65]

Well to me, the recon looks so blurred as to be illegible but I am looking on a phone and of course you have scanned it.

Have they provided the deed of assignment and who is it between? Have you read it to make sure they have the rights to issue a claim. If it is only one deed I would be asking for the other. If terms and conditions are redacted, again I would ask why.

Of course for 11k I would not be acting as a Lip

[ADDLED]

Hi Warwick, thanks for the reply.

Well to me, the recon looks so blurred as to be illegible but I am looking on a phone and of course you have scanned it.

Its really blurred, a terrible copy.

Have they provided the deed of assignment and who is it between? Have you read it to make sure they have the rights to issue a claim. If it is only one deed I would be asking for the other. If terms and conditions are redacted, again I would ask why.

Between MKDP LLP and HOIST.
Notice of Assignment from Hoist is dated 12 Oct 2015 but the Deed of Assignment is dated 29
Feb 2016, and makes reference to an "Agreement to Assign" dated 31 July 2015. If the Deed of Assignment wasnt in existence when they sent the Notice, is the Notice valid?


Also, they've only provided statements from Feb-Dec 2013.

Of course for 11k I would not be acting as a Lip

Not a lot of choice atm... funds a bit scarce until later this year.

tks
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Diana M Amethyst Kati pt2537

[pt2537]

Muppets cant even get the Court fee right it seems, the Court charges 5% of the amount claimed, do the maths and its around £644

[pt2537]

Hi Warwick, thanks for the reply.


Its really blurred, a terrible copy.


Between MKDP LLP and HOIST.
Notice of Assignment from Hoist is dated 12 Oct 2015 but the Deed of Assignment is dated 29
Feb 2016, and makes reference to an "Agreement to Assign" dated 31 July 2015. If the Deed of Assignment wasnt in existence when they sent the Notice, is the Notice valid? No, Pickthall v Hill Dickinson, notice of the intention to assign cannot be good notice, that is very very clear, equally the notice of assignment is to tell you that there HAS BEEN an assignment now that cannot be the case if there was no assignment at that time


Also, they've only provided statements from Feb-Dec 2013.


Not a lot of choice atm... funds a bit scarce until later this year.

tks
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Diana M Amethyst Kati pt2537

see the above in blue

[pt2537]

Hi Warwick, thanks for the reply.


Its really blurred, a terrible copy.


Between MKDP LLP and HOIST.
Notice of Assignment from Hoist is dated 12 Oct 2015 but the Deed of Assignment is dated 29
Feb 2016, and makes reference to an "Agreement to Assign" dated 31 July 2015. If the Deed of Assignment wasnt in existence when they sent the Notice, is the Notice valid?


Also, they've only provided statements from Feb-Dec 2013.


Not a lot of choice atm... funds a bit scarce until later this year.

tks
ADD

Diana M Amethyst Kati pt2537

Re Funds, its often overlooked but there are many ways of funding a claim.

If you have legal expense insurance that may provide you with funding, car or home insurance often comes with that.

There is also Conditional Fee Agreements often called no win no fee, these work well for claims over 10k which are likely to be fast track claims. There are a few firms who do no win no fee, we do them a fair bit for claims like these.

[ADDLED]

Hi PT, tks for the pointer on this and ive included it in my Witness Statement. I've been a bit of a numpty as I had in my head hearing date of 20th, but its actually today at 2pm. I got my Statement in and Claimant has emailed saying they'll ask judge to adduce, but since their statement only arrived this week and they were still emailing me documents as of this morning im not sure they'll have a lot of luck in claiming I havent served on time, since neither have they.

[QUOTE=pt2537;n1399666]
Between MKDP LLP and HOIST.
Notice of Assignment from Hoist is dated 12 Oct 2015 but the Deed of Assignment is dated 29
Feb 2016, and makes reference to an "Agreement to Assign" dated 31 July 2015. If the Deed of Assignment wasnt in existence when they sent the Notice, is the Notice valid? No, Pickthall v Hill Dickinson, notice of the intention to assign cannot be good notice, that is very very clear, equally the notice of assignment is to tell you that there HAS BEEN an assignment now that cannot be the case if there was no assignment at that time
/QUOTE]

Regarding the above, Hoist have responded by submitting the attached letter from Compello (who they?) Ive posted a copy of my WS below and would be so grateful if you'd be able to give it a quick shufti to see if it's any good.

tks a million
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[ADDLED]

On 11 January 2018 I received a General Form of Judgment or Order stating that Summary judgment in the above claim had been awarded to the Claimant.

1. This claim is for a Credit Card / Running Credit agreement originally with Barclaycard regulated under the Consumer Credit Act 1974 and was a defended claim.
2. On 23 November 2017 I received a Notice of Trial Date, set for 10 May 2018.
3. On 15 December I received form N265 from the Claimant and was of the opinion that we would proceed to trial.
4. On 9 January I called the Court for an update and was advised that Summary Judgment had been sought by, and granted to, the Claimant. This came as a complete surprise to me, since I had not been served with a copy of the Claimant’s form N244 application. Upon asking the clerk why I hadn’t received notice I was advised that it was the Claimant’s, not the Court’s, responsibility.
5. On 22/1/2018, after several email requests, (EXHIBIT 2) having been sent the wrong documents, I finally received via email a copy of the Claimant’s form N244 and supporting Witness Statement. (EXHIBIT 1). From this form I can confirm the following points of fact:
6. On 22 December 2017, the last working day before the Christmas break, the Claimant issued an Application for Summary Judgment and, pertinently, requested that the Application be dealt with without a hearing. The Claimant’s Witness Statement that accompanied the Application was dated 22/12/2017.(EXHIBIT 3) The Application was read on 3 January 2018, the first working day after the Christmas holiday break.
7. On 11/1/2018 I received a letter from the Claimant, (EXHIBIT 4) dated 9/1/2018, making reference to the “Order of District Judge Hugman dated 16 Nov 2017” and enclosing the Claimant’s Witness Statement. This Witness Statement (EXHIBIT 5) differed from the Witness Statement that accompanied the N244 Application; it was dated 9/1/2018 and, importantly, in the list of costs there is a hearing fee of £545.
8. From this latest letter and the information it contained it is not unreasonable for me, the Respondent, had I not called the Court on 9/1/2018 and discovered the existence of the Application for Summary Judgment, to infer that the Claimant intended to continue to trial and was writing to me to provide their evidence bundle.
9. I feel that the Claimant has made a deliberate attempt to obtain Judgment behind my back, without providing any evidence to me, denying me the opportunity to defend myself. This is an abuse of process and would appear to be a breach of CPR 24.5 (EXHIBIT 6) which clearly states that a Claimant must file written evidence and serve a copy on the respondent. The fact that the Claimant failed to serve a copy of the Application means that I was not on notice and not given the chance to file evidence thus, contrary to CPR 24.5, was prejudiced.
10. On the basis of the above evidence I kindly request the Court to set aside the Order of 11/1/2018 so that I may defend the Claim.
11. In defence of this Claim, using the most recent Claimant’s Witness Statements dated 9/1/2018 as evidence of their Claim, I wish to make the following observations:
12. There are now 2 Witness Statements, each contradicting the other.
13. The Claimant’s exhibit “AKJ1” is such a poor copy of the ‘agreement’as to be largely illegible, therefore does not comply with s78 of the Consumer Credit Act 1974. It is also undated, therefore impossible to ascertain exactly, even if it could be read, when it was issued.
14. The amount of credit is not stated on the ‘agreement’ therefore it does not comply with s61(1)(a) of the Consumer Credit Act 1974. Nor does it contain the name and address of the person that is purported to be the applicant.
15. There is no application form in the Claimant’s Witness Statement bundle.
16. The Claimant’s exhibit “AKJ3”, a Default Notice dated 8 July 2013, issued by Mercers Debt Collections Limited, company number 2550639, registered office Citypoint, 1 Ropemaker Street, London EC2Y 9SS. Exhibit 7 is a copy of the accounts for this company, obtained from Companies House, listing them as a ‘dormant’ company. A dormant company by definition is a company that is not in business, and certainly cannot issue a Statutory Notice. For this reason I believe that the Default Notice is not compliant with s87 and s88 of the Consumer Credit Act 1974.
17. The Claimant’s exhibit “AKJ6” is a Notice of Assignment issued by the Claimant, dated 12/10/2015 advising of the assignment from MKDP LLP to Hoist Portfolio Holding 2 Ltd on 21/9/2015 and a Deed of Assignment that pertains. However, the Deed of Assignment is dated 29/Feb/2016 thus was not in existence when the Notice of Assignment was issued; at the time the Notice of Assignment was issued the Claimant did not legally own the debt, therefore the Notice is not compliant. I make reference to the case of Pickthall v Hill Dickinson; notice of the intention to assign cannot be good notice. Equally the point of the Notice of Assignment is to inform me that there has been an assignment, which cannot be the case if there was no Deed of Assignment at that time.
18. The Claimant’s exhibit “AKJ4” is a Notice of Assignment issued by Barclaycard, dated 13/6/2014 advising of the assignment from Barclaycard to MKDP LLP on 10/4/2014. Until receipt of this Witness Statement I had never heard of MKDP LLP and had never received correspondence from them. Furthermore, the Claimant has not provided a Deed of Assignment to prove the validity of their exhibit and therefore they have no proof that MKDP LLP legally owned the debt, or indeed the right to assign it to the Claimant in the first place.
19. Aside from the above, Hoist Portfolio Holding 2 Ltd are not licensed by the FCA to carry out debt collection activities. The FCA website Notes on Debt Collectors and Authorisation states the following; “Permission to carry on debt collecting is required to collect debts arising under credit agreements, consumer hire agreements and regulated peer-to-peer loans”. Since the Claimant is not a licenced company they do not have the required permission, so surely the Claim is invalid on this basis alone.
20. The Claimant has failed to comply with section 78 Consumer Credit Act 1974 and by virtue of s78(6) Consumer Credit Act 1974 cannot enforce the agreement.
21. 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.

In light of the above evidence, and in the interest of justice, I kindly request that the court strike out the claim.

[ADDLED]

pt2537 Diana M

[ADDLED]

UPDATE:
Ouch!!! I got battered.
Judge wouldnt accept the fact that I wasnt on notice about their Summary Judgment application, said that since the court had "decided" to issue judgment without a hearing that abuse of CPR is irrelevant.
Judge wouldnt accept late Witness Statement, wouldnt allow me to detail why i had an arguable case, refused request for adjournment to update my application, refused leave to appeal... in fact said, "You dont have to request leave to appeal, but I am going to refuse it anyway and if you want to appeal you'll have to go to the next stage".
Claimant didnt have to do a damn thing as the DJ didnt seem to be in the best of moods.

Im off to the pub...

[warwick65]

Bit rough. Do you have any options left.

He is right, you don't have to request leave to appeal, it is just easier.

[ADDLED]

Bit rough. Do you have any options left.

Ha, that was my next question. I think the DJ was pretty pissed off that I'd filed a statement at last minute. Can i just file a new N244 with a new legal argument?
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[ADDLED]

Hi again, hope everyones been enjoying the sunshine.
I've had a couple of days to lick my wounds and mull over what i want to do next.

Something that really stood out during the hearing was me questioning why the Court had heard the Summary Judgment Application without a hearing, their reason being that "The defence discloses no coherent statement of facts confirming that the defendant has a real prospect of successfully defending the claim". Because the Court had previously ruled to read the Application without a hearing he wasn't willing to allow argument on that issue at all during the hearing on Friday.

I tried to argue (also in my the Application) that, since the Claimant had asked for a decision without a hearing and had failed to serve notice of the Application to the Respondent, (breach of CPR 24.5 which clearly states that a Claimant must file written evidence and serve a copy on the respondent) I hadn't seen their Witness Statement so wasn't able to file a defence prior to the reading and, had they followed prcedure and I had filed a defence, the Court may well have made a different decision and refused the Application for Summary judgement..

He also wasn't interested to hear that the Claimant had filed 2 different Witness Statements; one with the summary judgment application, the other with a letter referring to a previous Order.

No luck... he wasnt keen on readdressing this at all. The rest was like shooting fish in a barrel; DJ repeatedly asked me to comment and ANYTHING i said that wasnt in my original N244 Application, anything i tried to say to flesh out what WAS in my N244 Application, was given the bums rush.

Ho hum....