Howard Cohen/Hoist Finance

[helen1]

Hi

I have a county court claim against me for an old debt from Tesco. I am not sure but think the debt is 5.5/6 years old. I don't have any paperwork relating to this. I asked for more time to deal with the claim but spent last week or so scratching my head on what to do. I have until Saturday to file a defence. I can't remember exactly when I took the debt out or for how much.

[Amethyst]

Could you fill in this please ( you can do reply with quote to copy the questions to your post )

Issue Date:

Have you Acknowledged the Claim?:

Total Amount Claimed : ( approximately please do NOT use EXACT figure given on the claim form, round up to next £100 or £1000)

Claimant’s Name: Hoist

Solicitors Firm: Howard Cohen

Original Creditor: Tesco

Original Debt (eg. Credit card/Loan/Overdraft) :

Particulars of Claim: ( Please type out in full excluding names/account numbers/exact amounts ):

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?):

List any letters you have sent (eg: CCA/ CPR ):

Any Other Information or Background Details:

[helen1]

Issue Date:21 Jan 2019

Have you Acknowledged the Claim?:Yes and also asked for more time but time up on Saturday which is when I need to file the defence.

Total Amount Claimed : £6,000 approx

Claimant’s Name: Hoist

Solicitors Firm: Howard Cohen

Original Creditor: Tesco

Original Debt Credit card

Particulars of Claim:

This claim is for the sum of x in respect of monies owing under an Agreement with the account no x pursuant to the Consumer Credit Act 1974 (CCA).
The debt was legally assigned by Hoist Portfolio Holding Ltd (EX Tesco Finance to the Claimant and notice has been served. The Defendent has failed to make contractual payments under the terms of the Agreement. A default notice has been served upon the Defendent pursuant to s.87 (1) CCA.

The claimant claims
1) The sum of x
2) Costs

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?):No I don't believe so. The debt was from Autumn 2012. I got in trouble financially very soon after. I can't remember when they sold it but it was quite quick. Certainly less than a year after the debt was taken out and I have had no contact with the debt collectors since.

List any letters you have sent (eg: CCA/ CPR ): None

Any Other Information or Background Details:

[pt2537]

The first thing to do, is to make a request under the Consumer Credit Act for the agreement, if they dont comply they cannot get judgment.

[helen1]

Its obviously tight but I cant be sure as just have no paperwork or copies of correspondence going back all these years.

[Amethyst]

Okay, yip left it a bit late as Defence due by Saturday. Send a CCA request in any case---> CCA Request to Hoist Portfolio Holding Ltd - do that today ( well in the post in the morning ).

Soon as you have sent it you can say you have sent it in your defence, although you couldn't yet say failed to comply but as long as it is in there. Include Statute Barred as you aren't sure and it puts the onus of proof on the claimant to show it isn't. The particulars of claim aren't particularly informative so mention that. Does anything show on your credit file re this debt?

You can also do a CPR 31.14 request - will need to do that tmw as well - see CPR 31.14 Request

and send a SAR to Tesco - Subject Access Request Letter

So, very very briefly as an idea to avoid a default judgment and give you time to get response from the above letters before you decide whether you are going to need to sort out any settlement negotiation or can proceed with defending the claim .......

1: The claim appears to be for an alleged debt that has arisen under a Consumer Credit Act 1974 regulated credit card agreement between myself and Tesco Personal Finance.
2: I contend that any debt that may have been owed to Tesco Personal Finance, which is denied, would be statute barred pursuant to the Limitation Act 1980 as I have not had any contact nor made any payments for over 6 years.
3: I have received no notification of any legal assignment of the agreement from Tesco Personal Finance to the Claimant and the Claimant is put to strict proof thereof.
4: I did not receive a default notice pursuant to s.87 Consumer Credit Act 1974 giving any opportunity to rectify any breach of contract that is alleged. The Claimant is required to produce a copy of said Default Notice. In any event the Claimant is required to prove a Default notice compliant with the requirements of the CCA was served.
5: I have sent a formal request for a copy of the agreement and terms pursuant to s.78 of the Consumer Credit Act 1974. In default of compliance with this request the claimant is unable to enforce the agreement.
6: A full breakdown of the alleged debt is required. The claim is for over £6000 and I am certain I would recall being indebted to such a large sum on a credit card. Therefore the Claimant is put to proof.
7. I have requested copies of documents mentioned in the claimant's statement of case pursuant to CPR 31.14 - being the agreement and terms, default notice and notice of assignment.
8.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.
9.I respectfully request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.
10.In the event that the relevant documents are received from the Claimant,I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment due to their Particulars of Claim being vague and having provided no evidence of the sums claimed.
11.It is denied that the Claimant is entitled to the relief as claimed or at all.



........... that is just an idea - there may be other issues ( PPI ? Dispute on any charges etc... but can't really plead until you have details of the debt )

[pt2537]

Okay, yip left it a bit late as Defence due by Saturday. Send a CCA request in any case---> CCA Request to Hoist Portfolio Holding Ltd - do that today ( well in the post in the morning ).

Soon as you have sent it you can say you have sent it in your defence, although you couldn't yet say failed to comply but as long as it is in there. Include Statute Barred as you aren't sure and it puts the onus of proof on the claimant to show it isn't. The particulars of claim aren't particularly informative so mention that. Does anything show on your credit file re this debt?

You can also do a CPR 31.14 request - will need to do that tmw as well - see CPR 31.14 Request

and send a SAR to Tesco - Subject Access Request Letter

So, very very briefly as an idea to avoid a default judgment and give you time to get response from the above letters before you decide whether you are going to need to sort out any settlement negotiation or can proceed with defending the claim .......

1: The claim is for an alleged debt that has arisen under a Consumer Credit Act 1974 regulated credit card agreement between myself and Tesco Personal Finance.
2: I contend that any debt that may have been owed to Tesco Personal Finance, which is denied, would be statute barred pursuant to the Limitation Act 1980 as I have not had any contact nor made any payments for over 6 years.
3: I have received no notification of any legal assignment of the agreement from Tesco Personal Finance to the Claimant and the Claimant is put to strict proof thereof.
4: I did not receive a default notice pursuant to s.87 Consumer Credit Act 1974 giving any opportunity to rectify any breach of contract that is alleged. The Claimant is required to produce a copy of said Default Notice.
5: I have sent a formal request for a copy of the agreement and terms pursuant to s.78 of the Consumer Credit Act 1974. In default of compliance with this request the claimant is unable to enforce the agreement.
6: A full breakdown of the alleged debt is required. The claim is for over £6000 and I am certain I would recall being indebted to such a large sum on a credit card. Therefore the Claimant is put to proof.
7.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.
8.I respectfully request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.
9.In the event that the relevant documents are received from the Claimant,I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment due to their Particulars of Claim being vague and having provided no evidence of the sums claimed.
10.It is denied that the Claimant is entitled to the relief as claimed or at all.

Have they pleaded a default notice in their claim? If they havent then they are stuffed but if they have then it still needs to comply with the CCA, that doesnt seem to have been mentioned in the Defence, maybe id amend it to say "In any event the Claimant is required to prove a Default notice compliant with the requirements of the CCA was served.

[Amethyst]

They have

This claim is for the sum of x in respect of monies owing under an Agreement with the account no x pursuant to the Consumer Credit Act 1974 (CCA).
The debt was legally assigned by Hoist Portfolio Holding Ltd (EX Tesco Finance to the Claimant and notice has been served. The Defendent has failed to make contractual payments under the terms of the Agreement. A default notice has been served upon the Defendent pursuant to s.87 (1) CCA.

but amended example to your way xxx ( cause it's better lol )

[helen1]

Fab thanks so much. I'll get that sorted in the morning! Are they likely to have all this documentation?

[helen1]

Forgot to say. it used to be on my credit report but disappeared recently - does that mean it is statute barred?

[Amethyst]

Things usually fall off the credit file 6 years after they defaulted, so it is a possibility

You hope they don't have the documentation, but it helps to ask for it to show the court they can't prove their claim. If they do have it you'll be able to tell if it is statute barred, if there's another defence, or if you're going to have to negotiate a settlement.

[helen1]

Thanks. I have drafted the CCA. With the CPR request - not sure what dates to put as need to do defence tomorrow/Saturday.

To enable me to file my defence and/or counterclaim, I require inspection of documents you mention in your statement of case ahead of filing my defence on22/01/2019. (realistically they wont actually receive it until 23rd? )

Also - If you require more time in which to comply with this request you must tell me in writing and confirm your agreement to an extension of the time allowed for me to file my defence as allowed under CPR 15.5 so I may notify the court.

I have already got the extension with the court - is the above paragraph relevent?

[Amethyst]

Leave the extension part out, and remove the " ahead of filing..." bit leaving it just as "To enable me to file my defence and/or counterclaim, I require inspection of documents you mention in your statement of case."

[helen1]

Thanks - one more question. The debt was originally under an old address I lived at. Should I point this out to Tesco on the SAR?

[helen1]

Actually just say you can put old addresses on the SAR template. Thanks so much for your advice. I have drafted letters which I will post tomorrow and file the wonderful defence you wrote. Thanks so much for your help!