Hoist/Howard Cohen

[Amethyst]

Re: Hoist/Howard Cohen

Judgment amount etc, identifying info.

Ahh thought it may be, but best to check nothing important in there.

Did you manage to call the court?

[ADDLED]

Re: Hoist/Howard Cohen

Hi, thanks so much for responding. Answers to your questions as follows;

Ahh thought it may be, but best to check nothing important in there.
Did you manage to call the court?

No, was busy all day so will call mon 9am.

in their witness statement do they plead that it is the original, or that it is the terms as varied ?

As per witness statement:

"a copy of the reconstituted Credit Agreement which includes the contemporaneous and final financial T&Cs of the Agreement"

Is this ( http://legalbeagles.info/forums/show...l=1#post739749) the Defence you entered for THIS claim?

This was my statement back in August for this case:

I received the claim XXXXXXXX from the Northampton County Court Business Centre on 29^th April 2017.

1. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.
2. This claim is for a Credit Card / Running Credit agreement originally with Barclaycard regulated under the Consumer Credit Act 1974.
3. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
4. The Claimant fails to give any breakdown or detail of how the sum claimed has been calculated.
5. The Claimant’s Particulars of Claim fail to state when the agreement was entered into.
6. The Defendant contends the alleged debt is statute barred by virtue of Section 5 of the Limitations Act 1980 in that no payment or acknowledgment has been made for over 6 years
7. The Claimants statement of case states that the account was assigned from MKDP to the Claimant. The Defendant has not received notice of this assignment.
8. In addition, the Defendant has received no notice of assignment of any alleged agreement from Barclaycard to MKDP. The Claimant is required to evidence that MKDP held the legal right to assign the agreement.
9. It is denied that neither Barclaycard, nor MKDP, nor the Claimant, served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.
   

1. On the 1^st May 2017 I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to the Claimant’s solicitors, Howard Cohen. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.
2. The Claimant has not sent any copies of a Default Notice or Notice of Assignment.
3. On the 1^st May 2017 I sent a formal request for a copy of the original agreement to Hoist Portfolio pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.
4. The Claimant has failed to comply with section 78 Consumer Credit Act 1974 and by virtue of s78(6) Consumer Credit Act 1974 cannot enforce the agreement.
5. The Claimant has provided two photocopies of terms and conditions it alleges were applicable to the account. One set of terms appears to be dated October 2012 and the other set is undated. As the Claimant has not stated the date of the alleged agreement, nor provided dates on the sets of terms sent, the Defendant is unable to ascertain the validity of these terms.
6. Neither set of terms contains the Defendant’s details or signature and the Defendant has not seen either of these documents previously.
7. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
8. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.
9. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.
10. It is denied that the Claimant is entitled to the relief as claimed or at all.

[Amethyst]

Re: Hoist/Howard Cohen

Had to check what 'contemporaneous' meant

existing at or occurring in the same period of time.....

Not sure that cuts the mustard really. Nor does combining it with

final financial T&Cs of the Agreement

I guess unless there was no change of terms between date of opening and date of default ? ( when approx were each of those?) which is unlikely. Anyway that doesn't satisfy section 78

shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it,

doesn't say there ' some random terms that might or might not have been in force around about the same time'.... lol

Any chance of a picture?

Such a bummer about missing the WS deadline - you're definately going to have to apply, but not sure for what until you speak to the court and find out if that summary judgment was off the back of an application from the claimant ( which you want a copy of if so )

[ADDLED]

Re: Hoist/Howard Cohen

Hi, tks again,

Such a bummer about missing the WS deadline - you're definately going to have to apply

Hi, did i miss the WS deadline though? I sent a full defence back in August.

find out if that summary judgment was off the back of an application from the claimant ( which you want a copy of if so )

When i photo'd the judgment i accidentally folded over a sentence above that reads:

"Upon reading the application dated 20 December 2017 of the claimant and without a hearing."

So it seems that Cohen have appliedd for summary judgment.
Is this fair and reasonable? Ive submitted a defence already and I'd given them, albeit belated (as was theirs) the N265 Disclosure of Docs form, so i have complied.

tks
ADD

[pt2537]

Re: Hoist/Howard Cohen

Hi, tks again,

Hi, did i miss the WS deadline though? I sent a full defence back in August.



When i photo'd the judgment i accidentally folded over a sentence above that reads:

"Upon reading the application dated 20 December 2017 of the claimant and without a hearing."

So it seems that Cohen have appliedd for summary judgment.
Is this fair and reasonable? Ive submitted a defence already and I'd given them, albeit belated (as was theirs) the N265 Disclosure of Docs form, so i have complied.

tks
ADD

Did you get served with a copy of their summary judgment application?

[ADDLED]

Re: Hoist/Howard Cohen

Did you get served with a copy of their summary judgment application?

Hi pt, no, nothing from them, had no idea about judgment application until i received the judgment last week.

I'd like to get a request to set aside in first thing tomorrow morning, can you tell me how to go about completing the N244 form, or if I post one up would someone be able to look it over and let me know if i made errors or need to add dertails?
tks
ADD

[ADDLED]

Did you manage to call the court?

Hi again,
called the court this morning... not the most helpful lot. Apparently application for summary judgment was made 22 Dec (last working day of 2017) and read/decided on 3 Jan (ist working day of 2018!).
I asked for a copy of thje application and was told theyd mail it to me, also they said that the claimant isnt obliged to send me a copy when they make the application. Is that true?

i told them i receeived the judgment order last Tuesday 16th, it is dated 11th, so i asked what date my 7 days begins. They said the orderr would have been mailed same a day as it was written up and add 2 days, I asked is that working days or calendar days, they really werent sure, they also mentioned 2-3 days, but couldnt be certain. When I received the claim form last year it allowed 5 days from date of claim beofre the 14 days starts ticking down for acknowledgement of service, so i asked if that timeframe also applied here, they got annoyed with me and told me that it isnt their responsibility to advise on dates.
Ho hum...

So, it looks like i really need to get something in to the court today. Could anyone advise what i have to put down on the N244 form so i can draft it out?

thanks again in advance
ADD.

[Amethyst]

That is completely unfair IMO, as you didn't receive their Witness Statement nor their Application for Summary Judgment what the heckerslike did the Judge use to make his decision as to whether you had a defence in the case or not? pt2537
You've got the Set Aside guide haven;'t you as a starting point, if you want to have a start and post up here I'm sure we'll give you a hand to get it as good as poss.

Rules on Summary Judgment https://www.justice.gov.uk/courts/pr...l/rules/part24 then stuff about service of the application https://www.justice.gov.uk/courts/pr...es/part23#23.4

Think it's 23.9 that lets them do it without notice, but they really shouldn't ( IMO )

Service of application where application made without notice


23.9

(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.

(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person –

(a) against whom the order was made; and

(b) against whom the order was sought.

(3) The order must contain a statement of the right to make an application to set aside^(GL) or vary the order under rule 23.10.

which it did.

But (2) you never got a copy of the application even after the event - which could help on the being delayed filing to set aside the order front.

[pt2537]

That is completely unfair IMO, as you didn't receive their Witness Statement nor their Application for Summary Judgment what the heckerslike did the Judge use to make his decision as to whether you had a defence in the case or not? pt2537
You've got the Set Aside guide haven;'t you as a starting point, if you want to have a start and post up here I'm sure we'll give you a hand to get it as good as poss.

thats gotta be set aside then.

[ADDLED]

Hi, ive spoken with Cohen and got a copy of the application and their asked the court for:

"An order for summary judgment pursuant to r.3.4(2) and r.24.2(a)(ii) CPR 1998 in favour of the claimant together with fixed costs. The document purporting to be a Defence consists of a bare denial and does not disclose any coherent statement of facts. It is the Clamants contention that on evidence the defendant has no real prospect of successfully defending the claim.
Application for Summary Judgment
Please find attached the claimants WS in support of this application..."

On their N244 application section 9. "Who Should be served with this application?" they've stated "The Defendant" but havent given my address for service. Is it for the court to serve me with a copy of the application?

I'm drafting an N244 but very worried i wont get it to the court by 4pm. Is it ok if i email it to them by close of the day?

tks
ADD

[ADDLED]

Heres the content of the N244;

Re case# XXXXXXX, I would like to apply for the Summary Judgment to bet set aside. The Defendant was not served with a copy of the Application for Summary Judgment dated 22 Dec 2017, therefore was not able to provide evidence that backs up the Defendant’s case. The Defendant had not received a copy of the Claimant’s witness statement, nor had the Defendant received a copy of the Agreement or Terms & Conditions that the Claimant relies on; this information was requested from the Claimant on 1 May 2017 pursuant to CPR31.14 and pursuant to s.78 Consumer Credit Act 1974, neither request was responded to by the Claimant.
Since receiving the Summary Judgment the Claimant has provided a copy of the Agreement and Terms and Conditions that they claim apply. The Claimant states that the Agreement was entered into in 1996, however the Terms and Conditions provided show the following;

1. “Default charges and account fees will only be included where your agreement was entered into on or after 26 November 2010 or this account was previously held with Egg.” It is impossible that this document existed in 1996 and therefore cannot be a copy of the agreement that was supplied at the outset, nor is it a reconstituted version of the same.
2. The claim makes no reference to the date the agreement was taken out or terminated, therefore it is not possible to verify if this document is valid and related to the claim in any way.
3. Accordingly, I dispute the claimant’s assertion that these terms, that the Claimant is relying on in evidence, are the document that was “supplied at the outset”.

There's more detail that i can flesh it out with, i.e.:

a) the Default Charges in the agreement are £12; Barclaycard reduced their fees from £20 to £12 in 2006, 10 years after I supposedly took out this agreement.
b) T&Cs make reference to 'Biometric data' which im certain wasnt in place in 1996.

Please let me know if you've any comment or assistance.
tks, as always
ADD

[Amethyst]

Heres the content of the N244;

Re case# XXXXXXX, I would like to apply for the Summary Judgment to bet set aside. The Defendant was not served with a copy of the Application for Summary Judgment dated 22 Dec 2017, therefore was not able to provide evidence that backs up the Defendant’s case. The Defendant had not received a copy of the Claimant’s witness statement, nor had the Defendant received a copy of the Agreement or Terms & Conditions that the Claimant relies on; this information was requested from the Claimant on 1 May 2017 pursuant to CPR31.14 and pursuant to s.78 Consumer Credit Act 1974, neither request was responded to by the Claimant.
Since receiving the Summary Judgment the Claimant has provided a copy of the Agreement and Terms and Conditions that they claim apply. The Claimant states that the Agreement was entered into in 1996, however the Terms and Conditions provided show the following;

1. “Default charges and account fees will only be included where your agreement was entered into on or after 26 November 2010 or this account was previously held with Egg.” It is impossible that this document existed in 1996 and therefore cannot be a copy of the agreement that was supplied at the outset, nor is it a reconstituted version of the same.
2. The claim makes no reference to the date the agreement was taken out or terminated, therefore it is not possible to verify if this document is valid and related to the claim in any way.
3. Accordingly, I dispute the claimant’s assertion that these terms, that the Claimant is relying on in evidence, are the document that was “supplied at the outset”.

There's more detail that i can flesh it out with, i.e.:

a) the Default Charges in the agreement are £12; Barclaycard reduced their fees from £20 to £12 in 2006, 10 years after I supposedly took out this agreement.
b) T&Cs make reference to 'Biometric data' which im certain wasnt in place in 1996.

Please let me know if you've any comment or assistance.
tks, as always
ADD

Just tagging pt2537 Joanna C; for the moment in case either pops in this eve. I'd keep it simple for now and you can expand in a Witness Statement before the hearing.

If it is impossible to verify the date the agreement was taken out, how can you say that it can't be yours as the document didn't exist in 1996 ( if you see what I mean ) ... are you absolutely certain that you didn't sign a new agreement in 2010 or such ( not sure when Egg changed to BC or if new agreements were dealt with )


Order and reasons.

For the summary judgment dated 3rd January 2018 made without notice to the Defendant to be set aside and the application to be dismissed because the Defendant contends he has a real prospect of successfully defending the claim.

Information box:

The Defendant was not served with a copy of the Application for Summary Judgment dated 22 Dec 2017, therefore was not able to provide evidence that backs up the Defendant’s case. The Defendant had not received a copy of the Claimant’s witness statement, nor had the Defendant any copies of documentation that the Claimant relies on in their application or in the case. The Defendant only became aware of the application on xxx January when he received the Summary Judgment order from the Court. A copy of the application has not been served on the Defendant at any time to date and he has requested a copy from the court.

Probably too long winded but then you could attach a Witness Statement expanding on your defence, as you've discussed, although I'm not sure if you would be better waiting until you have the SJ app in hand to respond to directly vs expediency of the application.

[pt2537]

Id put in box 3

An order, a draft of which is attached, that the order dated .......is set aside.

Why? The Claimant failed to serve the application for summary judgment on the Defendant. The Defendnat therefore was not on notice of the application nor was the Defendant given the chance to file evidence contrary to CPR 24.5 and as a result was prejudiced. Further, summary judgment ought to have been dealt with at a hearing.

Then in the evidence section of the N244, you will need to set out why the order should be set aside in more detail, in particular id focus on the lack of service of the application, the lack of the right to have submitted evidence in reply which is clear from the CPR, the right to set aside the order as it was made by an application without notice which a summary judgment application should not have been

id also add any cast iron reasons why the Court was in error granting judgment, for example if there was a breach of s78(1) CCA for example.

The fact the Court determind this application without hearing is highly prejudicial, there should have been a hearing to deal with the application and you should have been allowed the right to submit evidence which was denied when the app was dealt with without notice and without hearing.

[ADDLED]

pt2537
Amethyst

Tks for the replies, a quick bite to eat then i'll have a look over it.
Im worried about the dealine of 7days from service; looking at CPRs it deems service 2 working days after postaghe date which means today. Am i ok if its emailed before midnight?
ADD

[ADDLED]

If it is impossible to verify the date the agreement was taken out, how can you say that it can't be yours as the document didn't exist in 1996 ( if you see what I mean ) ... are you absolutely certain that you didn't sign a new agreement in 2010 or such ( not sure when Egg changed to BC or if new agreements were dealt with )

I meanrt that its impossible that these T&Cs were in effect at inception; Hoist claim cointract dates from 1996 but T&Cs mention a date of 2010. Ive never had an Egg card and never signed any agreements in 2010.
Also if the original contract/agreement dates from 1996, as Hoist allude, why would i have signed another agreement 14 years later? It makes no sense... the only logical explanation is that the T&Cs theyre relying on werent in existence in 1996 when they claim the agreement was signed, ergo in breach of s78 CCA.