Hoist Portfolio vs Munchkette

[munchkette]

Hi all,

I have recently discovered that I have a CCJ on my credit file which was granted by default in April 2014 on a former address.

I want to put in a request to have it set aside on the grounds that I was not able to respond to it due to it being sent to an old address and also it possibly being statute barred and possibly on the grounds that Hoist Portfolio are not FCA regulated so cannot bring a claim or so I've heard? I also dispute the amount of the claim as it's much higher the outstanding balance I was aware of. I believe the last payment or contact I had with the original creditor HSBC was sometime in 2007/8. I also sent a letter to HSBC in February 2009 requesting a copy of the original credit agreement which they provided.

The loan with HSBC no longer shows on my credit file and I no longer hold any records of the loan or payments to it as my accounts with HSBC were closed over 10 years ago and any payments from my current bank would also be over 10 years ago.
I've never had any dealings with or made any payments to Hoist Porfolio.
Hoist Portfolio mention the debt was assigned to them in 2011 (I never received any notification) but they only made a court claim in 2014 - can I use the fact they did not do anything for 3 years as part of my defence?
Please can I get some help on how to proceed, should I request a CCA from the claimant and write to their solicitor as per CCJ template letters but amend to reflect I did not receive the claim form? Should I do that before I submit the N244 form? I obtained the brief information about the judgement and claimant by phoning Northampton County Court, they emailed me the particulars of claim which I have pasted below but it didn't include the claimant or their solicitors name and address. Can I get some help in constructing my defence?

Lastly what is the quickest way to turn this around as it's holding me up from starting a new job?

Received a claim? Yes/No: NO
Issue Date: 02/04/2014
Have you Acknowledged the Claim?: NO
Total Amount Claimed: £9,598
Claimant’s Name: HOIST PORTFOLIO
Solicitors Firm: HOWARD COWEN
Original Creditor: HSBC
Original Debt (eg. Credit card/Loan/Overdraft) : LOAN
Particulars of Claim: Please type out in full excluding names/account numbers: THE CLAIMANT CLAIMS THE SUM OF 9,408.53 BEING MONIES DUE FROM THE DEFENDANT(S) TO HSBC BANK PLC UNDER A LOAN AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974 WHICH WAS ASSIGNED TO THE CLAIMANT ON 08/12/2011. NOTICE OF ASSIGNMENT HAS BEEN PROVIDED TO THE DEFENDANT(S). THE DEFENDANT(S)`S LOAN ACCOUNT NUMBER WAS XXXXXX/XXXXXXXX. THE DEFENDANT(S) HAS FAILED TO MAKE PAYMENTS IN ACCORDANCE WITH THE TERMS OF THE LOAN AGREEMENT. A DEFAULT NOTICE HAS BEEN SERVED PURSUANT TO THE CONSUMER CREDIT ACT 1974 BY HSBC BANK PLC. THE CLAIMANT CLAIMS THE SUM OF 9,408.53 AND COSTS. THE CLAIMANT HAS COMPLIED, AS FAR AS IS NECESSARY, WITH THE PRE-ACTION CONDUCT PRACTICE DIRECTION.

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): Possibly last payment or contact to/with original creditor in 2007/8, requested copy of credit agreement from original creditor in Feb 2009
List any letters you have sent (eg: CCA/ CPR ): NONE to claimant
Any Other Information or Background Details:

[Diana M]

Re: Hoist Portfolio vs Munchkette

I also sent a letter to HSBC in February 2009 requesting a copy of the original credit agreement which they provided.

. . . . should I request a CCA from the claimant and write to their solicitor as per CCJ template letters but amend to reflect I did not receive the claim form? Should I do that before I submit the N244 form?

Was the CCA Request you sent in 2009 a formal s 77-79 CCA Request with the £1 statutory fee?

You can't send another one at the moment because there is a CCJ but you will be able to send one once/if the claim is set aside.

You say HSBC sent you the credit agreement but was it compliant?

Di

[Diana M]

Re: Hoist Portfolio vs Munchkette

I want to put in a request to have it set aside on the grounds that I was not able to respond

. . . . . and possibly on the grounds that Hoist Portfolio are not FCA regulated so cannot bring a claim or so I've heard?

That was possibly something you heard from me

When and how did you find out about the CCJ? You need to act promptly with a set aside Application unless you've got a good reason for the three year delay.

Also how certain are you that your last payment was in 2008/9? The CCJ was in April 2014 so the debt wouldn't have been SB when the claim was issued unless the last payment was before April 2008.

What was the length of the loan if it had run its full term to expiry?

Statute Barred doesn't only depend on the last payment date, there can be other Causes of Action even after the payment.

Was there PPI on the loan?

Di

[munchkette]

Re: Hoist Portfolio vs Munchkette

Was the CCA Request you sent in 2009 a formal s 77-79 CCA Request with the £1 statutory fee?

You can't send another one at the moment because there is a CCJ but you will be able to send one once/if the claim is set aside.

You say HSBC sent you the credit agreement but was it compliant?

Di

Hi,

Yes the CCA request was a formal 77-79 CCA request with £1 fee.
HSBC sent me the credit agreement, I think at the time I was only checking to see that I had signed and dated it and I had. Not sure what else I should have been checking for and I don't have it any more.

[Diana M]

Re: Hoist Portfolio vs Munchkette

the CCA request was a formal 77-79 CCA request with £1 fee.
HSBC sent me the credit agreement, I think at the time I was only checking to see that I had signed and dated it and I had. Not sure what else I should have been checking for and I don't have it any more.

There are loads of things to check for compliance not just the signature. Did they send you 'honest and accurate' Ts & Cs for example?

I was recently in court (as a debtor not as an employee of my firm) where my two MBNA credit agreements were ruled "irredeemably unenforceable" by the judge even though my signature was on both of them !

PRA GROUP (UK) LIMITED v DIANA MAYHEW – WIN

‘“RECONSTITUTED AGREEMENT” – IRREDEEMABLY UNENFORCEABLE”
“UNREDACTED DEEDS OF ASSIGNMENT – NO ASSIGMENT PROVED”

So, held Recorder Bellamy in PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017, at the end of a 3 day multi track trial, when dismissing PRA’s claim against our client.

Stale debts sued for on the back of 2 ‘reconstituted’ MBNA credit card agreements (May 1999 and October 2000) were held irredeemably unenforceable under CCA 1974. The evidence of an honest witness was preferred to that of so called “reconstituted agreements”.

After 3 days of close forensic examination of, and legal argument about, evidence and documents from both PRA and MBNA stating that our client’s specific debt had been assigned, the court held that no assignment had been proved.

Efforts, over many months, in earlier cases to force PRA into disclosure of un-redacted deeds and deep and sustained forensic challenge to the provenance of documents needed to prove regulatory compliance, finally drew back the veil. The reality behind bulk debt purchasing was revealed.

This decision shows that just saying an agreement is enforceable and producing a “reconstituted” copy does not prove that it is enforceable. Just saying an agreement has been assigned and producing a notice saying it has been assigned does not prove legal assignment.

Debt purchasers need to provide proof. If that means the pitifully few pence in the pound they pay for stale debts will increase because banks will now have to start keeping original evidence complying with regulatory consumer protection measures, it is hard to imagine many tears being shed, outside the City of London.

If you haven't kept the HSBC documents from your original CCA Request then send a Subject Access Request to HSBC to get the full history of the account/loan which should include all the documents which they have kept.

If (and I stress if ) HSBC had not complied with your original s 77-79 CCA Request in 2009 then the account/debt would have been unenforceable in court when the Default Judgment was granted in 2014.

If you've got a strong potential Defence then you stand a better chance with any Application for a set aside under the "other reasons" rule which may help you to overcome the three year delay.

Di

[munchkette]

Re: Hoist Portfolio vs Munchkette

That was possibly something you heard from me

When and how did you find out about the CCJ? You need to act promptly with a set aside Application unless you've got a good reason for the three year delay.

Also how certain are you that your last payment was in 2008/9? The CCJ was in April 2014 so the debt wouldn't have been SB when the claim was issued unless the last payment was before April 2008.

What was the length of the loan if it had run its full term to expiry?

Statute Barred doesn't only depend on the last payment date, there can be other Causes of Action even after the payment.

Was there PPI on the loan?

Di

Is there any merit in persuing the FCA regulation aspect?

I found out about the CCJ last Friday, credit check was part of pre-job screening. I had no idea as I moved out of that address in 2013 and have not checked my credit file for a number of years.

Last payment was definitely in 2007/8, I know HSBC were calling me at all hours of the day in 2008 chasing payment. I think December 2008 I was considering an IVA/debt consolidation but decided against it, nothing was ever set up and no payment was made.

I think the loan would have been for 5 or 7 years.

There was no PPI on the loan, I always made sure loan quotes did not include insurance.

[Diana M]

Re: Hoist Portfolio vs Munchkette

I found out about the CCJ last Friday, credit check was part of pre-job screening. I had no idea as I moved out of that address in 2013 and have not checked my credit file for a number of years.

That may help since you must act promptly once you find out about the CCJ . If you only discovered the bad news on Friday (not three years ago) then you need to get moving.

We are dealing with a similar situation at the moment and the employer has agreed to extend their probationary period on the basis that a set aside Application had been filed which had good prospects of success. The employer has given them the benefit of the doubt.

It also makes sense to make the court aware (in the Witness Statement) that your employment is at risk if the CCJ is not set aside.

Di

[Diana M]

Re: Hoist Portfolio vs Munchkette

Is there any merit in persuing the FCA regulation aspect?

Yes.

But only if you know how to argue it in court with all the relevant case law and complicated legal arguments

Di

[munchkette]

Re: Hoist Portfolio vs Munchkette

I think I submitted the CCA request in the hope they wouldn't respond in time or that they would not be able to find the original documents thus rendering it unenforceable.

Would HSBC still hold any documentation on the loan? It would be over 10 years now.

Is there anything to be made of the 3 year delay in Hoist bringing a county court claim?

[munchkette]

Re: Hoist Portfolio vs Munchkette

Yes.

But only if you know how to argue it in court with all the relevant case law and complicated legal arguments

Di

Could you explain it with case reference? I would like to include that in my defence if possible.

I think I'll need to phone the court again tomorrow as they said they would send me the original court documentation and their email states the particulars of the claim as I posted in my original message and refers to an attachment but there is no attachment giving the details of the claimant, their solicitor and addresses to respond to.

[munchkette]

Re: Hoist Portfolio vs Munchkette

For now I think I mainly need to know what I should do first given the situation.

Should I request from Hoist
- CCA
- Proof of outstanding amount and interest/penalties
- Proof of default
- Notice of assignment and proof I was notified of this

Once issued should I wait 7 days to receive this from them before submitting my N244 or should I submit the N244 now?
Not sure what I should put as my defence especially in the absence of any claim documentation from Hoist and the above documents

[Diana M]

Re: Hoist Portfolio vs Munchkette

Should I request from Hoist
- CCA
- Proof of outstanding amount and interest/penalties
- Proof of default
- Notice of assignment and proof I was notified of this

No.

As I explained in my post # 2 the Judgment Creditor is not obliged to comply with your request for documents now that they have a CCJ against you.

Their next step would be enforcement of their CCJ such as bailiffs, Attachment of Earnings if you’re employed or a Charging Order if you own a property.

Di

[warwick65]

Re: Hoist Portfolio vs Munchkette

Hi
This is a lot of money and high stakes, - a job

Why not email [MENTION=87380]Diana M[/MENTION], there is a link in her signature. I think her firm give some free limited initial advice.

[munchkette]

Re: Hoist Portfolio vs Munchkette

So when/how do I obtain these documents? At the moment I have nothing other than the CCJ

They haven't done anything with their CCJ for nearly 4 years so far.

I'm in the process of completing the application to set judgement aside, I've put this as my reason, is this sufficient or should I mention anything else? There's limited space to say anything and this takes up pretty much all the space. I assume I give the full details in the witness statement section.

I am asking for the judgement to be set aside. I did not receive the claim form due to it being sent to an old address therefore I did not have the opportunity to dispute the claim. I only recently became aware of the claim due it being flagged in a pre-employment credit check. My employment is dependent on it's removal.

Is there a template that I can use for my witness statement and is there anything in particular that I need to be including?

Thanks

- - - Updated - - -

It is high stakes however it is not a permanent job it's temporary contract but a first after spending most of the year looking!

[warwick65]

Re: Hoist Portfolio vs Munchkette

Hi
Just wanted you to know I'm not ignoring you. I am afraid I have never seen or done a set aside

I do know you get the set aside and then get the cca request sent off.

Lots of arguments are available but I think you need someone with different skills yo me.