Hoist Portfolio Holding 2 Ltd vs statue barred

[nethany]

Hi Everyone,
County Court Claim filed with court:
Issue Date: 31/03/2015
Original Creditor: Santander Credit Card
Claimant: Hoist Portfolio holdings 2 Limited
Claimants Solicitor: howard Cohen
Amount: £7000

Particulars of Claim:

The Claimant claims payment of the overdue balance due from the defendant under a contract between the defendants and Santander Credit Cards.
Dated on or about January 2008 and assigned to the claimant on October 15 2014.
Particulars a/c no xxxxxx

Debt: Credit Card
Actions: Acknowledged the Claim and sent statute barred defense.
Sent a CPR 31.14, on 15th April 2015 but had no reply
I believe it is Statue Barred.
Other Info:
The debt that is being persuing is from a credit card.
My defense was it was statute barred.
My CPR 31.14 request was never replied.
The documents submitted to court claim a £1 fee was payed into the account 1st Sept 2009 thus no longer statue Barred. I do not recall such a payment and no such payment or cheque has been withdrawn from my bank account. Previous to this according to a high level statement of accounts, there was a payment of £275 on the 11th March 2009, again I cannot see this payment in my bank accounts ( which I have held with the same bank for the past 23 years).
Prior to this on the January 9th 2009, I see a £10 payment on the account, I believe this was a standard fee I sent in request for information but should not have been payed into the account.

At no time in the past 6 years have I acknolewdged any debt.

other information
5th March 2015 - Claiment claims that they sent a Letter before action - I cannot recall getting this.
31st March 2015 - claim rasied with the nothampton county court bulk centre.

Acknoledged and defense sent within timelimits.

Any help would be gratefully received.

[FlamingParrot]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Hi and welcome

My defense was it was statute barred.
My CPR 31.14 request was never replied.
The documents submitted to court claim a £1 fee was payed into the account 1st Sept 2009 thus no longer statue Barred.

This sounds like the fee for a CCA request being wrongly credited into the account.

I do not recall such a payment and no such payment or cheque has been withdrawn from my bank account.

You may have sent a Postal Order for £1 to cover the CCA request fee as is customary to do it that way.

Previous to this according to a high level statement of accounts, there was a payment of £275 on the 11th March 2009, again I cannot see this payment in my bank accounts ( which I have held with the same bank for the past 23 years).
Prior to this on the January 9th 2009,I see a £10 payment on the account, I believe this was a standard fee I sent in request for information but should not have been payed into the account.

The £10 do sound like the fee for a SAR request which, as you say, shouldn't have been credited, neither should the £1 fee for the CCA request. More concerning though are the £275, any idea where that could have come from?

At no time in the past 6 years have I acknolewdged any debt.

other information
5th March 2015 - Claiment claims that they sent a Letter before action - I cannot recall getting this.

That's not a big deal, lack of compliance with the pre-action conduct can have an effect on costs but this sounds like it would have gone to small claims due to amount.

31st March 2015 - claim rasied with the nothampton county court bulk centre.

If the £275 payment on the 11th of March was made AFTER the account was defaulted then it could still be statute barred as the clock would run from last payment date. If that was still a contractual payment made before the relationship between you and the creditor broke down, then the wouldn't yet have had a cause of action at that point. When did you actually default on the card?

That's the most significant point, I think it could be safely assumed that if they credited the SAR fee in January 2009 then they could well have done the same with the CCA fee in September. :thumb:

[nemesis45]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Hi welcome to LB


Your previous CCA request and the £1 payment who did you send it to?
Did you use a postal order?
Courts do not accept payment in this way.
What evidence has hoist produced to support the claim of a £1 payment?

It's not unknown for creditors or debt purchasers to allocate statutory fee
to accounts and not supply the information requested.

Which company was handling the debt at the time of the alleged payment?( Important we can challenge the payment with them) I can help with a draft letter if you need it)
A statutory fee cannot stop the 6 year clock.

nem

[nethany]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Hi and thanksyou for the comments.

1. I have no idea where the £275 came from, no record from my bank.
2. Its so long ago back in 2009 that i do not know if i sent postal order or cheque for the sar or the cca request ( to santander).
2. the claiment has included a default letter, but it contains no dates/account numbers of anything else other than the standard text. It contains variables such as %e4 etc where dates and account information should be. I cannot honestly say when I defaulted, I cannot remember back to 2009.

I only received the information from Hoist yesterday, wating for the official court copy. Until then they have not provided any information since march 31st when they initially filed the claim.

They have not provided any detail information regarding payments, £1, the statements in the pack only have a date and show a sum applied to the account.

many thanks for your help.

[nemesis45]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Hi and thanksyou for the comments.

1. I have no idea where the £275 came from, no record from my bank.
2. Its so long ago back in 2009 that i do not know if i sent postal order or cheque for the sar or the cca request ( to santander).
2. the claiment has included a default letter, but it contains no dates/account numbers of anything else other than the standard text. It contains variables such as %e4 etc where dates and account information should be. I cannot honestly say when I defaulted, I cannot remember back to 2009.

I only received the information from Hoist yesterday, wating for the official court copy. Until then they have not provided any information since march 31st when they initially filed the claim.

They have not provided any detail information regarding payments, £1, the statements in the pack only have a date and show a sum applied to the account.

many thanks for your help.

OK Nethany,

Have you checked your credit files this may provide some information that could be useful, there Noddle a free credit ref site that's free online.

Can we see the default notice please?

Waiting for the official court copy of what please.

nem

[nethany]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Hi Nemesis45

I have checked my credit file, all there is for this is from Hoist with a RED D and DF underneath from July 2015! Nothing before and no history showing.

looking in more detail at what they have sent , they have included a template of the default wording but not a copy of the actual default, i wonder if this is because it will show that it is expired.

when I say that I am waiting for an official copy, they have (i guess) submitted it to go to court and have sent me a copy of their claim, i am just waiting to see if I get anything from the court now.

In the claim they state that because there was a £1 payment made on 1st Sept 2009, and the fact they started proceeding on the 31st March 2015 that my defense of statue barred in not a defense.

many thanks again.

[nethany]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

another update; the claiment is suggesting that a default notice was issued on the 23 Sept 2009. the evidence is a mainframe screen with some wording, which apparently corresponds to default served.

I guess I am confused now, I thought I may have defaulted way before and its almost coincidental its from the same month that the £1 was taken out for the cca request. I wonder if they issued a new default as I was requesting new information?

the other question i guess, when does a defense of statute barred start from, the default notice or last acknowledgement of debt?

many thanks Nethany

[nemesis45]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

[QUOTE=nethany;582301]another update; the claiment is suggesting that a default notice was issued on the 23 Sept 2009. the evidence is a mainframe screen with some wording, which apparently corresponds to default served.

I guess I am confused now, I thought I may have defaulted way before and its almost coincidental its from the same month that the £1 was taken out for the cca request. I wonder if they issued a new default as I was requesting new information?

A default notice is simply a letter to tell you that unless you pay the default sum (arrears) with in a set time usually 14 days ( some card providers give 28 days) a default will be registered with credit reference agencies, BUT a DN must have an exact day by which ( within which) payment must be made.
e.g. You must pay the sum of £ xxxx.xx before 10th October 2015.

A default can be registered up to 6 months after the DN is issued.

There is " argument " put forward by some companies that the date the default is registered is the start base upon an Appeal Court Judgement BMW Finance - v- Hart, this was in a case involving an Hire purchase agreement/.

Many legal offices have published say the date the last ever payment was paid + one month is a safe guide on which to argue.
Another argument put forward is that contractual terms override the provisions of The Limitation Act 1980, i.e 6 years with no payment or written acknowledgment to put it simply.

I stick to the last payment + 1 month.

No statutory fee can be used as a payment to stop the 6 year " clock".

nem

[FlamingParrot]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

2. the claiment has included a default letter, but it contains no dates/account numbers of anything else other than the standard text. It contains variables such as %e4 etc where dates and account information should be. I cannot honestly say when I defaulted, I cannot remember back to 2009.

That would be the bank's standard default notice template. Banks don't usually keep copies of default notices because they are just mail-merged to be printed off and sent out and not saved as individual files.

I have checked my credit file, all there is for this is from Hoist with a RED D and DF underneath from July 2015! Nothing before and no history showing.

Although credit file data is not relevant to the claim, that's something you should look into, if you defaulted in 2009 the default should drop off this year, you don't want it there for a further six years so I'd be asking Hoist to remove the incorrect entry.

looking in more detail at what they have sent , they have included a template of the default wording but not a copy of the actual default, i wonder if this is because it will show that it is expired.

The default notice and the default recorded on your credit file are two separate issues. As I said above, they didn't include the actual DN because they don't have a copy of it, all they have is the standard mail-merge template without your details.

In the claim they state that because there was a £1 payment made on 1st Sept 2009, and the fact they started proceeding on the 31st March 2015 that my defense of statue barred in not a defense.

many thanks again.

They would, wouldn't they? For the sake of £7,000, I'd also say a lot of things! :blah: :blah:

A one off £1 payment is not something you, or anyone else, would have made just out of the blue, so it could be easily explained as the CCA request fee, especially in view of the fact they did the same thing with your earlier SAR request fee. :mmph:

another update; the claiment is suggesting that a default notice was issued on the 23 Sept 2009. the evidence is a mainframe screen with some wording, which apparently corresponds to default served.

Could well be, although copies are not retained by banks, there is usually a record of when the DNs are issued. :typing:

I guess I am confused now, I thought I may have defaulted way before and its almost coincidental its from the same month that the £1 was taken out for the cca request. I wonder if they issued a new default as I was requesting new information?

I doubt it, the only reason to issue a fresh DN is to rectify a defective one.

the other question i guess, when does a defense of statute barred start from, the default notice or last acknowledgement of debt?

many thanks Nethany

Well, there was a recent case where the judge decided that the date of the default notice should start the clock, however, that was a county court judgment which does not set precedent. Furthermore, the general consensus is that the judge's decision was wrong and the judgment is being appealed with the help of a solicitor. :thumb:

[nethany]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Many thanks for everyones help. I am still to receive the papers from my local court. Is there anything I can do in the meantime ?

The claiment is relying on evidence that I paid a £1 into the account on the 1st Sept 2009 and that they brought the claim on the 31st March 2015, this would have been for a CCA and should never have been added. Can I inform the court that the the claim is invalid because of this? Or is it a waiting game to file a defence when rquested?

many thanks

[FlamingParrot]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Morning

The claim is not invalid, it's a valid claim which has been defended saying the debt is statute barred and they are disputing that fact, that is where the courts come in, to settle disputes of these nature, so it wouldn't make the claim invalid. You have already filed your defence of statute barred so you won't need to file another defence or amend your previous defence because nothing has changed.

What you will need to prepare is your witness statement where you will describe everything that took place, how you were disputing the account back in 2009, the fact that you sent a SAR and the £10 fee was credited to the account earlier that year should be relevant. Although the burden of proof is on them to show it's not SBd, you should try to dig up as much as you can about these payments, if you have any letters referring to your CCA request back in 2009 or anything that mentions sending one, that's what you want. :typing:

It shouldn't be too difficult to make the point that the £1 payment in Sept 2009 was mistakenly credited to your account and was, in fact, a CCA request fee. :thumb:

[nethany]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Many thanks FlamingParrot! the help everyone has given me has been great :-)

[FlamingParrot]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

What you will need to prepare is your witness statement where you will describe everything that took place, how you were disputing the account back in 2009, the fact that you sent a SAR and the £10 fee was credited to the account earlier that year should be relevant.

To give you a idea, examples of witness statements can be found here: http://www.legalbeagles.info/forums/...ness-Statement :thumb:

[nethany]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Hi All, well I thought I would check the MCOL and website to find that the case was sent to my local court!, I dont recall getting a letter from them. I have phoned them and they say the case is due to be held at the end of the month. this leaves me very little time to prepare, but what is worse is i am working away at the due date of the hearing.

Can I request the case to be adjourened ? many thanks.

[nemesis45]

Re: Hoist Portfolio Holding 2 Ltd vs statue barred

Hi All, well I thought I would check the MCOL and website to find that the case was sent to my local court!, I dont recall getting a letter from them. I have phoned them and they say the case is due to be held at the end of the month. this leaves me very little time to prepare, but what is worse is i am working away at the due date of the hearing.

Can I request the case to be adjourened ? many thanks.

Did you attempt mediation Nethany?
When is the hearing?
All documents that both parties intend to rely on in court must be disclosed " At Least 14 Days Prior to The Hearing.

Have you received anything from the claimants solicitors?

nem