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In September of this year I received a Claim Form issued via the Northampton County Court Business Centre. It was for Hoist Portfolio 2 Holdings via their Solicitors, Howard Cohen & Co for an aged debt to Santander Bank in the sum of £11555.59.
I acknowledged the claim and filed a defence that I believed the debt to be Statute Barred and wrote Howard Cohen & Co notifying them of this unless they could provide evidence otherwise. No repsonse.
In early November I received a Notice of Proposed Allocation to the Fast Track and a Directions Questionnaire to complete.
Also, I then spoke with Howard Cohen & Co as the Notice required that I "try to agree directions with all other parties".
They tried to bamboozle me with various disingenuous legal arguments and phraseology but I was having none of it. I explained that there are no grounds for discussion because they had failed to provide any evidence to the contrary to my belief that the debt was statute barred. They said they would write to me within the next week.
I then received a letter with a number of confusing and misleading statements. Also, they enclosed a number of account statements from May 2002 through to June 2011 showing all activity on the account, a copy of the Default Notice dated 11/4/2011 for arrears in the amount of £1903.20 (when the balance outstanding on the account was £11,178.92 and no payment having been made since 2007 !!!) and a screenshot of an application showing the notes from an alleged telephone conversation between Santander and I on 24/9/2009.
From the account statements it is clear that the last payment made to the account was on 2/8/2007 and all transactions since then were automated payments debited to a current account which were returned same day, added to the outstanding balance and interest added.
They are trying to claim that the debt is not statute barred by saying the last "cause of action" was 16 days after the default was issued (11/4/2011), when this is totally incorrect. The last "cause of action" would at the very best be a couple of months after the actual time they could have defaulted the account. That would have been a couple of months after the the last payment on 2/8/2007.
They also claimed (verbally) that by virtue of having to "pass security" to have a conversation that the phone call on 24/9/2009 constitutes an "Acknowledgement of Debt". The Law is clear in that an acknowledgement has to be in writing, or by way of payment. Thus, as there has been no written acknowledgement, ever, the debt is clearly statute barred and unenforceable.
I wrote to them thanking them for their letter and enclosures and set out my argument again in light of the above and enclosed a copy of my Directions Questionnaire that I had returned to the court maintaining my position that this should not be enforceable. Also a Subject Access Request with an offer to pay if required, and a CCA Letter together with a postal Order for £1. They wrote back asking for a payment of £10 to satisfy the SAR. I sent a cheque same day.
I received no acknowledgement or response to my CCA letter and the deadline was 25/11/2015, they have 40 days to comply with the SAR and that takes things into January 2016.
In early December I received two communications;
Firstly, a copy of Howard Cohen's Directions Questionnaire stating the following;
1. Pursuant to CPR 26.7(2), the claim to be allocated to the Small Claims Track.
2. There be a stay of one month to allow both parties to negotiate settlement of the claim by way of the Small Claims Mediation Service.
3. Both parties to inform the Court by 25th December 2015 if settlement has been agreed, or an extension of the stay is required.
4. If settlement has not been agreed, then the Claim to be transferred to the Defendant's local court to be allocated to the Small Claims Track and listed for a Hearing on a date to be fixed by the Court with a time estimate of one hour.
5. The Claimant pay the hearing fee on a date to be fixed by the Court.
6. No expert evidence being necessary, no party has permission to call or rely on expert evidence.
7. Each party shall deliver to every other party and to the Court office, copies of all documents on which they intend to rely upon no later than 14 days before the Hearing along with a signed Statement of Truth.
Secondly, a letter from Northampton CCBC saying that the Claim is being moved to my local County Court and to await the Judge's Directions.
So, after all this my questions are as follows;
1. The information I have and their change of tactics/direction would seem to indicate that they know the debt is indeed statute barred and want to agree some sort of figure below £10,000 (the upper limit of the Small Claims Court). Am I correct ?
2. My intended next action is to say that I cannot enter into mediation until they have provided the information requested in November, namely the CCA and SAR information. Therefore suggesting that they stay for another month.
3. Assuming that they provide the information to absolutely prove beyond doubt that the debt is statute barred, what are their options ? I don't believe they have any beyond continued contact and harassment which I could raise with the FCA. Correct ?
4. What sort of sum are they likely to have paid Santander for this debt ?
Hope you can advise/help.
Regards
P
I acknowledged the claim and filed a defence that I believed the debt to be Statute Barred and wrote Howard Cohen & Co notifying them of this unless they could provide evidence otherwise. No repsonse.
In early November I received a Notice of Proposed Allocation to the Fast Track and a Directions Questionnaire to complete.
Also, I then spoke with Howard Cohen & Co as the Notice required that I "try to agree directions with all other parties".
They tried to bamboozle me with various disingenuous legal arguments and phraseology but I was having none of it. I explained that there are no grounds for discussion because they had failed to provide any evidence to the contrary to my belief that the debt was statute barred. They said they would write to me within the next week.
I then received a letter with a number of confusing and misleading statements. Also, they enclosed a number of account statements from May 2002 through to June 2011 showing all activity on the account, a copy of the Default Notice dated 11/4/2011 for arrears in the amount of £1903.20 (when the balance outstanding on the account was £11,178.92 and no payment having been made since 2007 !!!) and a screenshot of an application showing the notes from an alleged telephone conversation between Santander and I on 24/9/2009.
From the account statements it is clear that the last payment made to the account was on 2/8/2007 and all transactions since then were automated payments debited to a current account which were returned same day, added to the outstanding balance and interest added.
They are trying to claim that the debt is not statute barred by saying the last "cause of action" was 16 days after the default was issued (11/4/2011), when this is totally incorrect. The last "cause of action" would at the very best be a couple of months after the actual time they could have defaulted the account. That would have been a couple of months after the the last payment on 2/8/2007.
They also claimed (verbally) that by virtue of having to "pass security" to have a conversation that the phone call on 24/9/2009 constitutes an "Acknowledgement of Debt". The Law is clear in that an acknowledgement has to be in writing, or by way of payment. Thus, as there has been no written acknowledgement, ever, the debt is clearly statute barred and unenforceable.
I wrote to them thanking them for their letter and enclosures and set out my argument again in light of the above and enclosed a copy of my Directions Questionnaire that I had returned to the court maintaining my position that this should not be enforceable. Also a Subject Access Request with an offer to pay if required, and a CCA Letter together with a postal Order for £1. They wrote back asking for a payment of £10 to satisfy the SAR. I sent a cheque same day.
I received no acknowledgement or response to my CCA letter and the deadline was 25/11/2015, they have 40 days to comply with the SAR and that takes things into January 2016.
In early December I received two communications;
Firstly, a copy of Howard Cohen's Directions Questionnaire stating the following;
1. Pursuant to CPR 26.7(2), the claim to be allocated to the Small Claims Track.
2. There be a stay of one month to allow both parties to negotiate settlement of the claim by way of the Small Claims Mediation Service.
3. Both parties to inform the Court by 25th December 2015 if settlement has been agreed, or an extension of the stay is required.
4. If settlement has not been agreed, then the Claim to be transferred to the Defendant's local court to be allocated to the Small Claims Track and listed for a Hearing on a date to be fixed by the Court with a time estimate of one hour.
5. The Claimant pay the hearing fee on a date to be fixed by the Court.
6. No expert evidence being necessary, no party has permission to call or rely on expert evidence.
7. Each party shall deliver to every other party and to the Court office, copies of all documents on which they intend to rely upon no later than 14 days before the Hearing along with a signed Statement of Truth.
Secondly, a letter from Northampton CCBC saying that the Claim is being moved to my local County Court and to await the Judge's Directions.
So, after all this my questions are as follows;
1. The information I have and their change of tactics/direction would seem to indicate that they know the debt is indeed statute barred and want to agree some sort of figure below £10,000 (the upper limit of the Small Claims Court). Am I correct ?
2. My intended next action is to say that I cannot enter into mediation until they have provided the information requested in November, namely the CCA and SAR information. Therefore suggesting that they stay for another month.
3. Assuming that they provide the information to absolutely prove beyond doubt that the debt is statute barred, what are their options ? I don't believe they have any beyond continued contact and harassment which I could raise with the FCA. Correct ?
4. What sort of sum are they likely to have paid Santander for this debt ?
Hope you can advise/help.
Regards
P
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