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Hello all, Have received claim form for my old student account overdraft- think i have a game plan and would like your advice.
Name of the Claimant: Hoist Portfolio Holding 2 LTD
Date of issue: 04 JUL 2016
What is the claim for – the reason they have issued the claim? The claim is for the sum of £2300 in respect of monies owing pursuant to an overdraft facility under bank account number XXXXXXXXXXXXX.
The debt was legally assigned by MKDP LLP (Ex Lloyds Banking Group) to the Claimant and notice has been served. The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.
1.The claimant claims the sum of £2300.
2.Interest pursuant to s69 of the county court
Act 1984 at a rate of 8.00 percent from the 12/08/11 to the date herof 1781 is the sum of £1892.92
3. Future interest accruing at the daily rate of £50.00
4. Costs
What is the value of the claim? £3500
Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account?
Student Account Overdraft
When did you enter into the original agreement before or after 2007? 2008
Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.? Assigned to Hoist
Were you aware the account had been assigned – did you receive a Notice of Assignment? Don't recall getting any notice
Did you receive a Default Notice from the original creditor? Don't recall any notice
Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Cannot recall
Why did you cease payments? Had student overdraft, went over limit of £1500 only due to their charges. Had to withdraw from uni as mother dying and financial issues. Was unable to pay.
What was the date of your last payment? 2010 possibly
Was there a dispute with the original creditor that remains unresolved? No
Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? No
Essentially, I was hoping this would reach stat barred limit. I did the wrong thing and hoped it would go away. I incurred this when in serious financial strife and only went over overdraft limit due to their charges.
I have acknowledged service and have drafted a CPR 31.14 request and am looking to mount a put to proof and your charges are unfair defence. I would also be happy entering into a reduced settlement for the actual amount of the overdraft limit, the rest being charges. would need to be installments ideally. Looking for more time and hopefully for them to go away because a) I am defending and b) they may not have the documents or alternatively to do mediation or negotiate a cheaper settlement. I dont recall getting a default notice or notice of assignment to Hoist. Also, who are MKDP- I had an account with Lloyds TSB- did they have a right to sell the alleged debt?
I have drafted the below CPR 31.14 request and made a low WOP offer. I would welcome your comments on advice on what to do. Will also post my defence and any response when I get it.
Dear Sirs,
Re: Hoist Portfolio Holdings 2 Limited v Mr X Y Claim Number: XXXXXX
Request for documentation pursuant to CPR 31.14
On 6th June 2016, I received a claim form in respect of the above claim and I have acknowledged service of the same to the court setting out my intention to defend the claim in full.
To enable me to file my defence and counterclaim, I require inspection of all documentation mentioned in your particulars of claim, ahead of me filing my defence on 5th August 2016. Please accept this letter as my request under CPR 31.14 for the disclosure and production of a true and legible copy of the following:
1) The terms and conditions of the alleged bank account and evidence these were signed by the defendant and the assignor of the alleged debt (viz. MKDP LLP)
2) Evidence of the sums alleged to be owed under the terms and conditions of the alleged bank account including a full breakdown of the account such that the defendant can see how the amount claimed has been calculated. Where charges are alleged to have been made under the terms and conditions of the alleged bank account, the defendant requires the same to be fully particularised.
3) The notice of assignment from MKDP LLP to the claimant such that the defendant can verify that the debt was a) legally owned by MKDP LLP and that b) it has been validly assigned to the claimant, including proof of postage to the defendant and documentary evidence in the form of signature receipt that the same was received by the defendant
4) The statutory notice of default alleged to have been issued on 12/08/2011, including proof of postage to the defendant and documentary evidence in the form of signature receipt that the same was received by the defendant.
You will doubtless be aware that in accordance with the provisions of CPR PD 16 para 7.3 where a claim is based on a written agreement, a copy of the contract or documents constituting the agreement should be served with the particulars of claim and the originals will need to be available at any hearing. Furthermore, any general conditions incorporated in the contract should also be so served.
You will doubtless claim that since the sum claimed means that upon service of my defence the claim will likely allocated to the small claims track you have no obligation to disclose the documentation requested. At this time, the claim has not been allocated to a track and I have not served my defence and as such the provisions of CPR 27(2) do not apply and you should not seek to rely upon it to avoid compliance with your CPR 31 duties.
To ensure the same, you should ensure that the documentation requested is received by me within 7 days of receipt of this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.
Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.
In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.
If you require more time to comply fully with this request you must inform me in writing within seven days of receipt of this letter. In your letter, you must include details of the steps you have taken and propose to take in order to fully comply with my request and particularise a date on which you will be able to comply. Your letter must further include a statement that you agree to an extension in the time allowed for me to file my defence. Any extension of time must not be for any period of time of less than 14 days and must particularise the new date for service of my defence.
In the event that you cannot comply with this request and believe that you will never be able to comply with it, you are required to inform me in writing by way of a notice of discontinuance of proceedings.
In the event, you neither comply with my request, nor request additional time to comply or grant additional time for me to file my defence, it is my intention to apply to the court for an order for specific performance of this request and that the proceedings be struck out should you be unable to comply. This order will include a provision that the claimant will bear the defendant’s costs.
without prejudice to the aforementioned, and entirely without prejudice to the question of liability, in the alternative, I am willing to make a payment in full and final settlement of the claim.
The terms of this offer are that the defendant pays the claimant the sum of £500.00, consisting of a £200.00 lump sum, and six subsequent monthly installments of £50.00. If intending to accept the offer, the claimant will do so in writing and issue a notice of discontinuance of proceedings in writing to the defendant and inform the court of the same. Once the sum of £500.00 has been paid, the claimant shall enter a partial settlement entry into the defendant’s record with credit reference agencies.
Failure to accept the above offer, will result in the claimant being put to strict proof of each and every allegation in its particulars of claim. If the claimant intends to enter into negotiations regarding a full and final settlement, the defendant will entertain reasonable counter offers made in writing.
I look forward to hearing from you.
Name of the Claimant: Hoist Portfolio Holding 2 LTD
Date of issue: 04 JUL 2016
What is the claim for – the reason they have issued the claim? The claim is for the sum of £2300 in respect of monies owing pursuant to an overdraft facility under bank account number XXXXXXXXXXXXX.
The debt was legally assigned by MKDP LLP (Ex Lloyds Banking Group) to the Claimant and notice has been served. The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.
1.The claimant claims the sum of £2300.
2.Interest pursuant to s69 of the county court
Act 1984 at a rate of 8.00 percent from the 12/08/11 to the date herof 1781 is the sum of £1892.923. Future interest accruing at the daily rate of £50.00
4. Costs
What is the value of the claim? £3500
Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account?
Student Account Overdraft
When did you enter into the original agreement before or after 2007? 2008
Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.? Assigned to Hoist
Were you aware the account had been assigned – did you receive a Notice of Assignment? Don't recall getting any notice
Did you receive a Default Notice from the original creditor? Don't recall any notice
Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Cannot recall
Why did you cease payments? Had student overdraft, went over limit of £1500 only due to their charges. Had to withdraw from uni as mother dying and financial issues. Was unable to pay.
What was the date of your last payment? 2010 possibly
Was there a dispute with the original creditor that remains unresolved? No
Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? No
Essentially, I was hoping this would reach stat barred limit. I did the wrong thing and hoped it would go away. I incurred this when in serious financial strife and only went over overdraft limit due to their charges.
I have acknowledged service and have drafted a CPR 31.14 request and am looking to mount a put to proof and your charges are unfair defence. I would also be happy entering into a reduced settlement for the actual amount of the overdraft limit, the rest being charges. would need to be installments ideally. Looking for more time and hopefully for them to go away because a) I am defending and b) they may not have the documents or alternatively to do mediation or negotiate a cheaper settlement. I dont recall getting a default notice or notice of assignment to Hoist. Also, who are MKDP- I had an account with Lloyds TSB- did they have a right to sell the alleged debt?
I have drafted the below CPR 31.14 request and made a low WOP offer. I would welcome your comments on advice on what to do. Will also post my defence and any response when I get it.
Dear Sirs,
Re: Hoist Portfolio Holdings 2 Limited v Mr X Y Claim Number: XXXXXX
Request for documentation pursuant to CPR 31.14
On 6th June 2016, I received a claim form in respect of the above claim and I have acknowledged service of the same to the court setting out my intention to defend the claim in full.
To enable me to file my defence and counterclaim, I require inspection of all documentation mentioned in your particulars of claim, ahead of me filing my defence on 5th August 2016. Please accept this letter as my request under CPR 31.14 for the disclosure and production of a true and legible copy of the following:
1) The terms and conditions of the alleged bank account and evidence these were signed by the defendant and the assignor of the alleged debt (viz. MKDP LLP)
2) Evidence of the sums alleged to be owed under the terms and conditions of the alleged bank account including a full breakdown of the account such that the defendant can see how the amount claimed has been calculated. Where charges are alleged to have been made under the terms and conditions of the alleged bank account, the defendant requires the same to be fully particularised.
3) The notice of assignment from MKDP LLP to the claimant such that the defendant can verify that the debt was a) legally owned by MKDP LLP and that b) it has been validly assigned to the claimant, including proof of postage to the defendant and documentary evidence in the form of signature
receipt that the same was received by the defendant4) The statutory notice of default alleged to have been issued on 12/08/2011, including proof of postage to the defendant and documentary evidence in the form of signature receipt that the same was received by the defendant.
You will doubtless be aware that in accordance with the provisions of CPR PD 16 para 7.3 where a claim is based on a written agreement, a copy of the contract or documents constituting the agreement should be served with the particulars of claim and the originals will need to be available at any hearing. Furthermore, any general conditions incorporated in the contract should also be so served.
You will doubtless claim that since the sum claimed means that upon service of my defence the claim will likely allocated to the small claims
track you have no obligation to disclose the documentation requested. At this time, the claim has not been allocated to a track and I have not served my defence and as such the provisions of CPR 27(2) do not apply and you should not seek to rely upon it to avoid compliance with your CPR 31 duties.To ensure the same, you should ensure that the documentation requested is received by me within 7 days of receipt of this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.
Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.
In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.
If you require more time to comply fully with this request you must inform me in writing within seven days of receipt of this letter. In your letter, you must include details of the steps you have taken and propose to take in order to fully comply with my request and particularise a date on which you will be able to comply. Your letter must further include a statement that you agree to an extension in the time allowed for me to file my defence. Any extension of time must not be for any period of time of less than 14 days and must particularise the new date for service of my defence.
In the event that you cannot comply with this request and believe that you will never be able to comply with it, you are required to inform me in writing by way of a notice of discontinuance of proceedings.
In the event, you neither comply with my request, nor request additional time to comply or grant additional time for me to file my defence, it is my intention to apply to the court for an order for specific performance of this request and that the proceedings be struck out should you be unable to comply. This order will include a provision that the claimant will bear the defendant’s costs.
without prejudice
to the aforementioned, and entirely without prejudice to the question of liability, in the alternative, I am willing to make a payment in full and final settlement of the claim. The terms of this offer are that the defendant pays the claimant the sum of £500.00, consisting of a £200.00 lump sum, and six subsequent monthly installments of £50.00. If intending to accept the offer, the claimant will do so in writing and issue a notice of discontinuance of proceedings in writing to the defendant and inform the court of the same. Once the sum of £500.00 has been paid, the claimant shall enter a partial settlement entry into the defendant’s record with credit reference agencies.
Failure to accept the above offer, will result in the claimant being put to strict proof of each and every allegation in its particulars of claim. If the claimant intends to enter into negotiations regarding a full and final settlement, the defendant will entertain reasonable counter offers made in writing.
I look forward to hearing from you.
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