pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

If you want [MENTION=6]Amethyst[/MENTION] to 'talk' you through her post then send her a PM.

What time is your hearing tomorrow?

Di

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

It is mid morning. I am not feeling confident at all, I thought without the CCA agreement it would have been discontinued. More fool me

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

It is mid morning. I am not feeling confident at all, I thought without the CCA agreement it would have been discontinued. More fool me

I'm sorry this has given you a sleepless night (you posted at 3.30 am) but that's only because you're feeling under-prepared which is the Claimant's fault for disclosing a wadge of documents the day before the hearing. You need to bring that to the judge's attention at the beginning of the hearing.

Both Jo and I have suggested that you ask the DJ for an adjournment to take advice on what they have sent.

It would be a good idea to write down the argument you are going to put to the court so that you don't get flustered. As Hoist have served late you could ask the court for an adjournment for time to get advice on the enforceability of the documentation they have provided.

You may be approached by the Claimant's solicitor before the hearing. They may tell you that you haven't got a hope of winning because they've got the cat in the bag. They may even ask you what you'll be arguing in court. This will be done to unsettle you.

You need to hold your nerve and tell them that you will be seeking an adjournment and ask them if they will agree to that. They will probably say No but at least you can tell the DJ that you did ask them to agree it. That's the reason the court ordered WS (and any evidence which they intend to rely on) to be filed 14 days before the hearing not 24 hours.

Don't get into any debate about the CCA with the solicitor. Don't give them any clues as to what you're thinking. You're there to argue your case in court not in the waiting area. If you feel you're being put under pressure by them simply say you need to make a phone call or go to the bathroom, and walk away.

Your initial argument (in your Defence and WS) was that they had failed to disclose any documents. That argument now switches to the 'honesty and accuracy' of what they produced at the eleventh hour. To do that effectively you need to take advice and 'in the interests of justice' you should be given the opportunity to obtain advice.

If the DJ insists on continuing because you're both there then point out as many anomalies as you can find in that CCA and DN etc.

Don't be thrown if the DJ asks "did you borrow the money or didn't you?". Some take a moralistic approach to people in debt. The issue is whether the Claimant is entitled in law to claim that money from you and to do that they need to have watertight paperwork.

If it feels right to you then you could ask the DJ for permission to file an Amended Defence in the light of the late disclosure of documents after you had filed your initial Defence. Did you refer to the potential need to do that in your Defence?

The solicitor will spout Carey v HSBC in an attempt to say they can reconstitute a document which is sort of true. But nevertheless the recon must be 'honest and accurate' (Joanna Connolly was the lead solicitor in that case )

I haven't seen the reconstituted document that you've been sent which they say is the credit agreement. Study it for errors. Is the box for PPI ticked and did you have PPI? Does it refer to other page numbers which you've not been sent? Is any date on it plausible? Does it say the Tc & Cs are on the reverse and have they included those etc.

Fingers crossed for you

Di

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

There is not much information on the credit agreement at all, one flaw I have found is the APR rate is different to what my agreement with Barclaycard was. I have an old Barclaycard statement which can prove this and have seen other cases won for this reason, should I take this along with me incase the judge will not allow adjournment? Is it smart to provide this given it admits full liability of the debt? If I am asked if I owed Barclaycard I think im obligated to say yes otherwise am I not in contempt of court?
Any last minute help is very much appreciated.

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

If you've got a Barclaycard statement that proves the APR on the "CCA" is incorrect then take it with you to the hearing (three copies).

I'm not going to raise your expectations but if there is evidence before the court that the CCA is flawed then I would hope the claim would be dismissed. But it's not that simple because you may need to quote various sections of the CCA 1974 which gives the judge no discretion in the matter. As a LIP that's tricky but at least give it your best shot.

If it goes against you then ask the DJ for permission to appeal before he leaves the room.

Good Luck

Di x

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Case has been adjourned as a result of me only getting the documents yesterday. I think I messed up asking for an adjournment rather than refusal to see documents as the judge mentioned this and was pretty uncomplimentary towards the solicitor for hoist in regards to evidence submitted. Also think I messed up mentioning the Barclaycard interest rate on the debt as the judge then wrote I confirmed I did have a Barclaycard on the notes, and said unless I have the original agreement it was worthless as credit card interest rates change all the time. Gutted. She advised me to seek legal advice and settle out of court if I had no defence in light of their new evidence. For what it would cost for a solicitor I may be better off asking for a settlement with Hoist, what do you think? Is there anything I should be doing to see if the claim is worth disputing now they have the reconstituted cca? The only thing I can think of is a SAR request and if the interest rate is different on that to what they have put on the CCA I may have an argument.
Thanks for all help provided so far.

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

You haven't messed up at all!

You got an adjournment not a CCJ

Considering the negative attitude of the DJ towards you I think you triumphed.

The DJ really didn't have any alternative but to adjourn. She may have been cross for all sorts of reasons. You've picked up on the ones that worry you. Focus on the telling-off she gave the other side's solicitor. That will make you feel better.

Write down everything you can remember about the hearing before it slips from your mind.

You now have time to prepare for your next step. Wait for the Order to arrive and then post what it says. Did she adjourn to be listed for the next available hearing date after 14 days with a time estimate of X hours? Or something like that.

Di

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

28days after the order and for one hour I think it was. Should I just sit back and wait or is it worth requesting the SAR? I dont know how long it takes to arrive and want to give myself as much chance as possible of finding something I could make a defence with or to see if I have a defence should I say.

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

is it worth requesting the SAR? I dont know how long it takes to arrive and want to give myself as much chance as possible of finding something I could make a defence with or to see if I have a defence should I say.

Definitely send a SAR to Barclays asap.

If you've got any old statements of your own or any paperwork then that will help too.

Let the forensics begin

Di

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Would you recommend doing it online or via post? If its by post should I send a £10 postal order with the request or after?

https://www.apply.barclays.co.uk/for...execution=e1s1

That is what I have came across when I googled, 'Barclays SAR request address'. If you do not want to click an outside link then its basically just an online form which you put all details in and it states,
The fee for submitting a Subject Access Request is £10 and you can pay by cheque or postal order. After you submit your request, we’ll get in touch using the contact details you’ve provided to let you know where to send your payment.

I have submitted it online as that is what it states you must do on the Barclays website. Now to wait. Anything else I should do?

Thanks again

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

I have today received a copy of Carey vs HSBC via recorded delivery from the claimant. The letter accompanying finished with 'We confirm our client will consider any reasonable offer to discharge the debt claimed in these proceedings'. I have checked with the payments on the copy statement and they are from November 2010 so I dont have a case for statute barred unfortunately. Any thoughts on this?

[Diana M]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

I have today received a copy of Carey vs HSBC via recorded delivery from the claimant. The letter accompanying finished with 'We confirm our client will consider any reasonable offer to discharge the debt claimed in these proceedings'.

Some Claimant's solicitors use Carey v HSBC to hoodwink you into thinking it gives them carte blanche to produce reconstituted documents which don't comply with s.78.

This is what my boss has to say on the matter:

The Carey v HSBC case was one of mine when I was head of consumer credit litigation at MSB so I know the documents HH Waksman was referring to in reaching his decision. S.78 is for information purposes only to inform the borrower of the terms of his/ her agreement. The proof purpose is different and where the borrower requires the claimant to prove the terms of the signed agreement they have to.

The four corners means that there has to be a clear connection with the documentation . There are different regulations depending on when the agreement was entered into as to whether the prescribed terms/ key financial information have to be grouped together on the the agreement with signature or whether the signature can be on the front and the prescribed terms are on the back . However in the latter there has to be clear linkage for the proof purpose.

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

Im not sure what that means to be honest, the cca must have my signature with the agreement? The one I have received has no signature or credit limit. I think the credit limit has to be stated from what I can find out. Under credit limit it says 'We will tell you your credit limit when you receive your card.' What I have received seems to be more terms and conditions than an actual agreement.

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

I have just received the order, it says,
Upon hearing for the claimant and defendant in person and upon being advised that the defendant received the claimants witness statement and documentation by post yesterday.
And upon being advised and noting that the defendant had been requesting the documentation since August 2016 and yesterday was the first time he received anything.
And upon being advised that the defendant didnt admit that he agreed to the terms in the reconstituted agreement although he admit he had a barclaycard.
And upon the claimant being unable to provide a copy of the case law relied upon the defendant.
And upon the defendant asking for an adjournment to take legal advice for the claimant to be prevented from relying on the evidence served in breach of the court order of xxx.
It is ordered that 1) the hearing is adjourned to xxx at xxx. 2) The claimant will send to the defendant copies of any case law it intends to rely on at the next hearing by xxx on xxx.

[pmpmpm22]

Re: pmpmpm22 vs Hoist Portfolio Holdings 2 Ltd p

How much would I expect to pay a solicitor to take over this case?