Ccj claim form received hoist portfolio / howard cohen (barclaycard)

[Ryan4418]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Thanks Di!

The claim is dated around 9th Jan so I guess I have some time yet!.. You are right, I just wanted to get things done!!. The debt was for a little over £2k, rising to over £3k with interest and charges.

I will send my letters off and wait a week or so to see what, if anything, comes back before finalising my defence.

Thanks again to everyone for their help, its hugely appreciated!

[Ryan4418]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Morning all!

Just a quick one, im preparing my SAR to Braclaycard and was wondering if this letter would reset the Default date as it would show contact with me? The debt will be statute bared in 2018 and I dont want to put if back to the start and wait another 6 years if I can avoid it!!!

Thanks.

[MIKE770]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

no do not over think!

[Diana M]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

The debt will be statute bared in 2018 and I dont want to put if back to the start and wait another 6 years if I can avoid it!!!

I'm afraid the debt won't become SB in 2018 since a court summons has been issued which stops the SB clock from ticking.

However if the claim is ultimately Discontinued then the SB clock starts ticking again so 2018 may become a reality (unless they re-issue after any Discontinuance).

Send the SAR to Barclays.

Di

[Ryan4418]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Morning all!

So, to date, I have still not heard back from the Claimant nor their Solicitors. The 7 days will be up on Monday and my defence is due next week so, assuming that I hear nothing back, I have put together the following defence letter.

Should anyone have a spare 5 mins, please have a read and I would welcome any feedback!!!

************************************************** ************************************************** ************************************************** ************************************************** *************************




IN THE COUNTY COURT BUSINESS CENTRE
Case No - ********

CLAIMANT

Vs

DEFENDANT

Defence

I deny that monies are owed to the Claimant as alleged in the Particulars of Claim and do not recognise the assertion that any debt has been Legally Assigned to the Claimant and as such the Claimant is put to the strictest of proof, including but not limited to:

I. Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974) the Original Signed Consumer Credit Agreement, along with a copy of the original Terms & Conditions and any subsequent changes in said Terms & Conditions (referred to as the ‘Regulated Agreement’ within the Particulars of Claim) and show how the Defendant has entered into an agreement.

II. Show how the Claimant has reached the amount claimed by proving a full Statement of the Account referred to, including details of all payments made and calculation of how interest was charged against each item listed, leading to the Alleged Debt of £****.** (£****.** with Court Fee and Legal Costs).

III. Show how and when the agreement was breached and provide notice by way of Notice of Sums in Arrears served by the Original Owners along with a copy of the Default Notice from the original owners of the Alleged Debt and Certified Copies of how this was served upon the Defendant. IV. Show how the Claimant has the legal right / Absolute Assignment (as defined by Section 136 of the Law of Property Act 1925) to issue a claim, by providing the following:

a) A copy of the Default Notice referred to in the Particulars of Claim and Certified Copies of how this was served upon the Defendant, again as referred to in the Particulars of Claim.

b) As claimant has stated the debt was ‘assigned to the claimant’ a copy of the Legal Assignment, including, but not limited to a copy of the Deed of Assignment, as specified by Lord Denning in his ruling in Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 82, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Deed of Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824.I require sight of the assignment so as to be satisfied that it is valid and that the alleged assignee, can give me good discharge of the debt as per s 136(1)c of the Law of Property Act 1925.


c) For the assignment of a debt to be effective (and so giving the Claimant a right of action) a valid Notice of Assignment must have been sufficiently served upon me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

d) As per C above, a copy of the alleged Notice of Assignment alleged to have been sent by the original creditor to the Defendant, and again details of how this was served upon the Defendant.

e) As the Claimant is claiming County Court Interest under Section 69 of County Courts Act 1984, details of the costs paid by the Claimant to the Original Owner for the Alleged Assignment of the Agreement on (as referenced in Section 2 of the Particulars of Claim) and I request the Claimant disclose EXACTLY how much they allege they paid for this account so the Court may assess whether County Court Interest is applicable to the full claim amount.

V. As per Civil Procedure Rule (PD) 16.5(4), it is expected that the Claimant prove the allegation (as set out in the Particulars of Claim) that the money is owed. VI. Also, as under Civil Procedure Rule Part 39 – Practice Direction 39a 3.3, I remind you of the requirement for each of the documents you use as ‘proof of your claim’, ‘the originals of the documents contained in the trial bundle, together with copies of any other court orders should be available at the trial’.

For the information of the court -
On **/**/2017 and **/**/2017 I sent letters via recorded delivery (proof of delivery / receipt obtained) requesting all documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Claimants Solicitor. Amongst other things, I requested that the Claimant provide copies of the Agreement / Contract, Default Notice, Assignment and Formal Demand.

To date, Howard Cohen and Co have not sent any of these documents to me.

On **/**//2017 and **/**//2017 I sent letters via recorded delivery (proof of delivery / receipt obtained) requesting a copy of the ORIGINAL agreement to Claimant pursuant to Section 77(1) / 78(1) of the Consumer Credit Act 1974 along with the statutory £1 fee.

To date, the Claimant has failed to comply with this request and by virtue of Section 77(4)- 78(6) of the Consumer Credit Act cannot enforce the agreement.

The Claimants statement of case states that the account was assigned from ******** ( Ex Barclaycard) to Claimant on **/**/****. I do not recall receiving notice of this assignment.


I deny that Barclaycard served any Default Notice on me pursuant to S87 Consumer Credit Act 1974.


May I respectfully request that the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should be struck out.
In the event that the relevant documents are received from the Claimant I will then be in a position to amend my defence, and would ask that the Claimants bear the cost of any amendment.


Statement of Truth

I believe the facts stated in this defence are true.

[Ryan4418]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Morning!

Further to the above, I got a short letter in the post yesterday from Robinson Way on behalf of Hoist. The letter acknowledges my request and simply states that whilst they make the necessary enquiries they will stop all collection activity on the account.

Should I still send my letter of defence to the court (amended with the update)?

Thanks again

[Diana M]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

As has been said, the deadline for filing your Defence is 33 days from the claim Issue Date which you've said is "around 9th January". You need to be more specific about the date if you want someone on the forum to confirm the deadline for filing your Defence.

You seem to be in a rush to finalise your Defence but it's a very important document and you only get one shot at it (unless you seek the court's permission to amend it later) so it needs to be right.

Have you sent the SAR to Barclaycard to establish the SB issue including whether the PPI claims company may have acknowledged the debt when acting as your agent? When would that have been?

Di

[Ryan4418]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Hi Di,

The date of the CCJ Claim form is 10th Jan 2017.

Yes, I have sent the SAR to Barclaycard - if the PPI Company would have contacted them, it would have been some time around June 2013. I have not heard back yet on this.

Thanks again

[MIKE770]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Sunday 12th February = 33 days so make sure by Monday 13th February at the very latest & by 4 p.m. better to do it on the 10th February just in case of logging in problems at last minute.

[Ryan4418]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Thanks for that Di, thats really helpful.

Assuming that I do not hear back about the SAR before the deadline, do you think my defence letter is ok?

[Ryan4418]

Re: Ccj claim form received hoist portfolio / howard cohen (barclaycard)

Hi all..... a quick update.

At the 3rd time of asking I finally got my day in court and I am delighted to say that I won and the claim was dismissed! The judge said that as they could not prove that a default notice was ever served (Sect 7 consume credit act); they had not fulfilled their legal obligations. The judge said that it clearly sets out that these should be sent via recorded delivery or similar.

Hopefully this fact will help others as I doubt any of these debt management companies would ever be able to prove for certain that a default notice was served on someone in the past.

thanks everyone for all your help.

ryan