Hoist Portfolio v Andy77

[Andy77]

Re: Hoist Portfolio v Andy77

I recieved the witness statements from Hoist and need to do mine ready to send off on Saturday ideally.

Their witness statement give details of the total amount owed, the date of the agreement starting, details of the various reassignments its had over the years. They also mention they sent me all the documents requested in my defence, these will be in relation to the CCA and CPR requests I did in August that they took nearly 4 months to respond to, they say these shows all the details of the contractual obligations. They finish by saying I have no defence to the claim.

This weekend is my last chance now to do the witness statement and send it off, there are points raised below on this thread that I justnot sure how to articualte on the witness statement.

The default Notice is defective on service, the agreement is currently unenforceable. May be a good idea to to remove the documentation now from the public thread. I will ask @Kati

Ive edited the post as you left your personal info on there. Id say that the documents produced here are the same as were produced in HFO v Wegmuller which i dealt with and which can be found on BAILII

A good thing in my view. The agreement was full of errors and contradictions. Heres the judgment http://www.bailii.org/ew/cases/Misc/2012/19.html

Its perhaps worth pointing out that we didnt get to the section 78 point as the signed agreement that was prduced didnt contain the prescribed terms and was declared unenforceable as a result, but the section 78 issues i raised were also equally robust and the terms you have are the exact same ones which were served in Wegmuler, right down to the cancellation box which itself has issues

The section 78 is outlined in the case of Carey V HSBC which was one of my cases while I was Head of Consumer Credit Litigation at MSB Solicitors . Paras 60 & 173 in particular. The link can be found here http://www.bailii.org/cgi-bin/format...+(v)+AND+(HSBC)

You've not pleaded Statute Barred in your original Defence. You believe this debt is SB. Some issues can be dealt with in your Witness Statement, while introducing new legal arguments can't necessarily be raised that way.

I could really do with some help please on this. The witness statements need to be sent off either later today or tomorrow. Do I need to do an amended defence with the court and am I allowed to at this stage with the hearing just over 2 weeks away?

[pmpmpm22]

Re: Hoist Portfolio v Andy77

You need to pay them if you want their help. If you look on the CAG forum you will see a claim lost against the same claimant today with very similar evidence provided against them.

[Amethyst]

Re: Hoist Portfolio v Andy77

Have you had a read through some of the example witness statements, they should cover everything from your case. Did you have a read through the cases others posted ? Do you feel you still have a defence to the claim ?

Have a look here - http://legalbeagles.info/forums/show...ness-Statement

If you put together a draft then someone will give you a hand to polish it up a bit. , from what your last post says it sounds like they have complied with your CCA request but the agreement has issues that need pleading. You believe the debt to be statute barred but that hasn't been pleaded as yet. So it is likely you need to do an amended defence, which will take an application and is likely to be heard along with the claim hearing. You may be able to get the pleading in in your witness statement, as this is a small claim and you are a litigant in person, but it would be better to apply formally - in which case you'd need to put together your amended defence as well as the application, and a witness statement to go along side that, and your witness statement for the hearing.

SO the issues want a good looking at first;

Statute Barred - you can see a payment in July 2010 - was that before the debt was defaulted ? I see the claim was brought middle of august 2016 - which would make it tight and possibly arguable by the claimant, the cause of action can be argued to have been the date you missed a payment and thus entitled the creditor to take action to recover the debt. So although it might be a useful extra I wouldn't rely on it as a defence - I'd plead it but only as an addition alongside other issues.

Arguing the technicalities of a credit agreement isn't easy, once they have complied then usually, unless the agreement is extremely deficient, missing the terms etc, it is best to consider making a settlement offer to try and avoid a CCJ and any further costs from a hearing. Going to have a look if I can see the agreement.

[Andy77]

Re: Hoist Portfolio v Andy77

Have you had a read through some of the example witness statements, they should cover everything from your case. Did you have a read through the cases others posted ? Do you feel you still have a defence to the claim ?

Have a look here - http[IMG]file:///C:\Users\Andy\AppData\Local\Temp\msohtmlclip1\01\c lip_image001.png[/IMG]/legalbeagles.info/forums/showthread.php?59957-EXAMPLE-Witness-Statement

If you put together a draft then someone will give you a hand to polish it up a bit. , from what your last post says it sounds like they have complied with your CCA request but the agreement has issues that need pleading. You believe the debt to be statute barred but that hasn't been pleaded as yet. So it is likely you need to do an amended defence, which will take an application and is likely to be heard along with the claim hearing. You may be able to get the pleading in in your witness statement, as this is a small claim and you are a litigant in person, but it would be better to apply formally - in which case you'd need to put together your amended defence as well as the application, and a witness statement to go along side that, and your witness statement for the hearing.

SO the issues want a good looking at first;

Statute Barred - you can see a payment in July 2010 - was that before the debt was defaulted ? I see the claim was brought middle of august 2016 - which would make it tight and possibly arguable by the claimant, the cause of action can be argued to have been the date you missed a payment and thus entitled the creditor to take action to recover the debt. So although it might be a useful extra I wouldn't rely on it as a defence - I'd plead it but only as an addition alongside other issues.

Arguing the technicalities of a credit agreement isn't easy, once they have complied then usually, unless the agreement is extremely deficient, missing the terms etc, it is best to consider making a settlement offer to try and avoid a CCJ and any further costs from a hearing. Going to have a look if I can see the agreement.

I had a look at the 2 cases linked in earlier posts, firstly this one:
http://www.bailii.org/ew/cases/Misc/2012/19.html

6. It is the defendant-s case that this credit agreement is not enforceable on the grounds that all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not contained in the document signed by the defendant.

The copies they have sent to me of the application and the terms and conditions look to both be on a3 paper, but I can’t remember if they were part of the same form or not when I signed the application form and as they have sent them me as 2 separate photocopies then I cant be sure they’re on the same document. They have also sent me a4 copies of the terms and conditions too, these ones have my name and address printed on them so these must have come after the initial application.

This other case that was linked in an earlier due to problems with section 78.
http://www.bailii.org/cgi-bin/format...+(v)+AND+(HSBC

I requested a true copy of mine under s78 and they sent me what I described above, albeit nearly 4 months later after the request.

You are right in what you say about the default notice as it was served on 26^th august 2010, this must have been in response to payments being missed in June July & August of that year. The reason I mentioned possible statute barred is I have seen no record of contact or payments made since June 2010, although does a failed direct debit constitute contact? The court claim was issued 22^nd Aug 2016, so yes its tight date wise.

The default Notice is defective on service, the agreement is currently unenforceable.

I didn’t understand this quote from earlier as to why the agreement is unenforceable or indeed what problems there may or may not be with the agreement they have sent me.

[Andy77]

Re: Hoist Portfolio v Andy77

A final update on this before it goes to court next week.

First of all I can't say thank you enough to [MENTION=551]pt2537[/MENTION] for his help with the witness statement. The main points for the defence were the fact that the default notice didnt contain the correct address details for the original creditor and that the application they sent wasn't entirely legible and the terms and conditions they sent weren't linked to that form. I also mentioned facts like it took them 4 months to comply with the CCA & cpr request for information and that they'd also send the court papers to my parents house, somewhere I hadnt lived for 20 years!

Anyway they replied to say the'd got my witness statement and wished to make me an offer to settle it before court.

They also addressed points like saying it was my reponsibility to update my address with the creditor. Which was strange as all the old documents they sent to me had the correct address on it. So why send court proceedings to a previous address which is totally different than anything they had on file? That seemed a bit fishy to me, as I would then have had no chance to defend had that previous address not been my parents house. They seem to think the application is legible, thats certainly up for debate and in terms of the default notice they said its ok to put just the creditors name with the collection agents name and address on it (Mercers).

So in response to their offer I've called them to say I'll decline and will see them next week in court. They spoke about my defence and what I thought to which I said I disagreed with them on all their points. I also mentioned that it may be statute barred too as its just over 6 years since any payment or acknowledgement was made. They quoted a BMW v Hart case where it was ruled that the 6 years started with the issue of the default notification (which is if so makes it inside 6 years by just 4 days). However the national debtlines advice seems to stipulate its 6 years from last payment or acknowledgement. So I asked them to discontinue the case, they rang me back to say they wouldnt and that National debtline isnt a reliable source of information so their offer still stands to repay it.

So I've left it at that and will update next week with what happens in court.

[Andy77]

Re: Hoist Portfolio v Andy77

An update on the court hearing.

The case was adjourned as the judge gave me permission to change my witness statement to add the time limitation aspect. It was never in my original statement as the documents from the claimant didn't come through in time, so I mentioned it in court. The claimant tried to argue that the 6 years started from the termination of the agreement (as per the BMW v Hart car lease case). This would put the date of the court papers being issued within the 6 year limit. I argued that it started from the date of last payment, which was more than 6 years from when the court papers were issued. So thats when the judge adjourned and gave me permisson to change my statement to include it so that he could have a good look at it before another court hearing, when he said one or the other will win on the time limitation argument.

We were also urged to come to a settlement in court, ie both make an offer, but neither of us at that time had figures in front of us to do that.

I suppose what concerns me is that if I carry on will all court costs be added to the amount owed if I lost?

Also how do I amend my witness statement to add the extra argument?

[Diana M]

Re: Hoist Portfolio v Andy77

The case was adjourned as the judge gave me permission to change my witness statement to add the time limitation aspect. It was never in my original statement as the documents from the claimant didn't come through in time, so I mentioned it in court. The claimant tried to argue that the 6 years started from the termination of the agreement (as per the BMW v Hart car lease case). This would put the date of the court papers being issued within the 6 year limit. I argued that it started from the date of last payment, which was more than 6 years from when the court papers were issued. So thats when the judge adjourned and gave me permisson to change my statement to include it so that he could have a good look at it before another court hearing, when he said one or the other will win on the time limitation argument.

. . . Also how do I amend my witness statement to add the extra argument?

Do you mean the DJ has given you permission to amend your Defence to include the Statute Barred argument or amend your Witness Statement to include the SB legal argument?

Di

[Andy77]

Re: Hoist Portfolio v Andy77

Do you mean the DJ has given you permission to amend your Defence to include the Statute Barred argument or amend your Witness Statement to include the SB legal argument?

Di

Good question, I wrote both down in my notes, but he did query why it wasn't in my original defence.

Are you able to amend both?

[Diana M]

Re: Hoist Portfolio v Andy77

Good question, I wrote both down in my notes, but he did query why it wasn't in my original defence.

I can see that in post # 24 (7th February) I suggested you should file an Amended Defence to include the SB argument since you hadn't pleaded it in your original Defence and the Claimant hadn't disclosed the documents until three months after you filed it.

I wouldn't write to the Claimant and their solicitor to say the claim is Statute Barred at this stage since your post implies you've not pleaded SB in your Defence.

Depending on what's revealed in those documents you've been sent, you may need to file an Amended Defence. They disclosed the documents you requested four months after the claim was issued and about three months after you filed your Defence which you had to do in order to comply with the court timetable.

If an Amended Defence is needed then you will need permission from the court unless the Claimant's solicitors are willing to consent to your Amended Defence being filed.

You presumably decided not to do that, but was there a reason why you didn't refer to it in your Witness Statement?

I think you've got lucky with a DJ who's thrown you a lifeline (permission to file an Amended Defence and/or WS) instead of dismissing the argument because it hadn't been pleaded.

He may have done that because he thinks SB is a legal argument which is worth testing in court.

I wasn't there to know what was said but at least you live to fight another day. Well done you.

Di

[Andy77]

Re: Hoist Portfolio v Andy77

I can see that in post # 24 (7th February) I suggested you should file an Amended Defence to include the SB argument since you hadn't pleaded it in your original Defence and the Claimant hadn't disclosed the documents until three months after you filed it.

You presumably decided not to do that, but was there a reason why you didn't refer to it in your Witness Statement?

I think you've got lucky with a DJ who's thrown you a lifeline (permission to file an Amended Defence and/or WS) instead of dismissing the argument because it hadn't been pleaded.

He may have done that because he thinks SB is a legal argument which is worth testing in court.

I wasn't there to know what was said but at least you live to fight another day. Well done you.
Di

For SB the dates seemed so close with the issue of the court papers and the issue of a default notice, just shy of 6 years by about a week, so I didn't mention it or rely on it. In hindsight I should have done because it looks like no payments were made in at least 2 months prior to that. But like you say I have another chance.

Any idea about court costs if I lost? Would they get added to the claim? The claim is for less than £5000 as it stands right now.

Does know which forms to use to change my defence and witness statement, I have form N244 in the back of my mind as the one to use.

Thanks.

[Diana M]

Re: Hoist Portfolio v Andy77

Does know which forms to use to change my defence and witness statement

I think the first thing you need is a copy of the Order made at the hearing to clarify who is supposed to be doing what and when by.

Is it possible the DJ gave you permission to file an Amended Defence by a specific date and then the Claimant may file a Witness Statement in response to your Amended Defence (14 or 21 days later)?

Di

[Andy77]

Re: Hoist Portfolio v Andy77

I think the first thing you need is a copy of the Order made at the hearing to clarify who is supposed to be doing what and when by.

Is it possible the DJ gave you permission to file an Amended Defence by a specific date and then the Claimant may file a Witness Statement in response to your Amended Defence (14 or 21 days later)?

Di

I was given 14 days to amend both my witness statement and defence, then the claimant was given 14 days from that to respond. They were also ordered to provide more details on how the default notice and reassignments of the debt were delivered.

[Joanna C]

Re: Hoist Portfolio v Andy77

I was given 14 days to amend both my witness statement and defence, then the claimant was given 14 days from that to respond. They were also ordered to provide more details on how the default notice and reassignments of the debt were delivered.

Then you don't need to make an application if that is the order. The court has already given you permission.

[Andy77]

Re: Hoist Portfolio v Andy77

Then you don't need to make an application if that is the order. The court has already given you permission.

I'm not sure I understand what you mean. How do the ameneded witness statement and defence get filed then?

[Amethyst]

Re: Hoist Portfolio v Andy77

You send a copy to the court (file) and a copy to the claimant (serve) with a brief cover note ... Further to the order of DJ xxxxxxxxx on xxx date 2017 please find attached the amended Defence and supporting Witness Statement .....