Hoist/Howard Cohen

[Diana M]

Re: Hoist/Howard Cohen

I note the Claim is £9k, thus it is likely to be allocated to the small claims track unless you can argue per CPR 26.8 that on complexity the Claim should be fast track, however if the case is small claims then you may have a slight difficulty with a part 18 request because CPR 27 is clear as to what parts apply to small claims track cases

If you did make an application under rule 18 the opponents may oppose on that basis, so its a tricky one

Neither of these claims have been allocated to any track yet.

And as I'm frequently heard to say different lawyers litigate in different ways.

So let's agree to differ on the Part 18 issue (and all the other issues which I find myself challenged about ) I've been trained by Joanna Connolly Solicitors so I do things her way.

Di

[Amethyst]

Re: Hoist/Howard Cohen

Ok just roughly ( the one you haven't got the agreement for )


In the County Court at
Claim No.
HOIST PORTFOLIO HOLDING 2 LTD : Claimant

and

: Defendant

17th July 2017

-------------------------------------
DEFENCE
------------------------------------

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

Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.


The Claimant’s claim form fails to adequately set out the nature of the Claim.

I would dispute whether the Claimant has been legally assigned the rights under the agreement pursuant to the Law of Property Act 1925. The Claimant's statement of case states that the alleged agreement was legally assigned to them by MKDP (ex Barclaycard). It does not give a date for this assignment. I do not recall receiving notice of this assignment. In addition I do not have any record of receipt of any notice of assignment from Barclaycard to MKDP.

In order to find out more information to enable me to assess my position, on 1^st May 2017 I wrote to the Claimant and the Claimant’s legal representative requesting copies of documents mentioned in their statement of case pursuant to CPR Part 31.14 These documents being the agreement, default notice and notice of assignment.

To date I have not received a copy of the alleged Agreement, Notice of Assignment or Default Notice.

It is denied that the original creditor, Barclaycard, served any Default notice on me pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served.

On 1^st May 2017, I sent a formal written request to the Claimant requesting a copy of the original credit agreement pursuant to section 78 of the Consumer Credit Act 1974.

The Claimant has not provided a copy of the agreement and so has failed to comply with s78 (1) Consumer Credit Act 1974 and by virtue of s78 (6) Consumer Credit Act 1974 and is not entitled to enforce the agreement.

It is denied that the Claimant has served notice of sums in arrears pursuant to s86B Consumer Credit Act 1974. A notice of sums in arrears is a condition precedent on enforcement and therefore the Claimant is not entitled to enforce the agreement.

The Claimant has not provided any detail of how the sum claimed has been calculated.

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.

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. 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.

The Claimant has not complied with s78 or 86, and 87 Consumer Credit Act 1974 and therefore it is denied that the Claimant is entitled to the relief as claimed or at all.


Statement of Truth

I, XXXXXXX, believe the facts stated in this DEFENCE are true.

Signed :
Dated : 17^th July 2017

[Amethyst]

Re: Hoist/Howard Cohen

Second one.... could Di or Paul possibly comment on the agreement and how much detail to plead relating to it in the Defence ?

PDF -- >>> http://legalbeagles.info/forums/atta...2&d=1499712011

The address is from latest 1998. One agreement is from 2012 but has a big 2007/6/1 date printed at the bottom. The other, presumably is from 2007 as the charges are £12, and it also states 2007/6/1.

The interest rate and text doesn't match so its not a 'legible' recon of the badly photocopied agreement so presumably its meant to be original agreement when account opened and at time of default ( neither date pleaded )

[pt2537]

Re: Hoist/Howard Cohen

Neither of these claims have been allocated to any track yet.

And as I'm frequently heard to say different lawyers litigate in different ways.

So let's agree to differ on the Part 18 issue (and all the other issues which I find myself challenged about ) I've been trained by Joanna Connolly Solicitors so I do things her way.

Di

the problem is that, and i quote from District Judge Oldhams ruling on this point recently

1. This on the face of it is a small claim. It is issued through the money claims centre. There is a limit to what can go onto the pleadings. In any event the evidence is relaxed in small claims matters. It is still dealt with in a Court of Law.

In the above case, the Court was considering an unallocated claim where a request per Part 18 had been made, and had been subject to an application, and failed, and landed the consumer with £2k costs on the basis of it being unreasonable to apply the strict rules to a case Which Would be a small claim on allocation.

It is important that people on this forum who may well end up in Court arguing their case are aware of the risks

[warwick65]

Re: Hoist/Howard Cohen

PDF -- >>> http://legalbeagles.info/forums/atta...2&d=1499712011

The address is from latest 1998. One agreement is from 2012 but has a big 2007/6/1 date printed at the bottom. The other, presumably is from 2007 as the charges are £12, and it also states 2007/6/1.

Amethyst - maybe you should go to specsavers - the date is 2017/6/1 maybe 1st June 2017 - could that be the date they were printed?

[Amethyst]

Re: Hoist/Howard Cohen

Doh... that'll be it then.


Can you see a date on the one that isn't the 2012 one?

[Diana M]

Re: Hoist/Howard Cohen

the Court was considering an unallocated claim where a request per Part 18 had been made, and had been subject to an application, and failed, and landed the consumer with £2k costs on the basis of it being unreasonable to apply the strict rules to a case Which Would be a small claim on allocation.

It is important that people on this forum who may well end up in Court arguing their case are aware of the risks

I completely agree with your last sentence but it's caught me by surprise since last week you posted this on a thread where the claim was for only £571 (so likely to be allocated to the Small Claims Track) in which there was no mention of the risks involved >

A cpr 18 request can be useful, for example if a party refers to a document in their reply to part 18 then they have disclosed the document in their reply and you can ask for a copy under CPR 31. as a part 18 reply forms part of the pleadings.

Di

[pt2537]

Re: Hoist/Howard Cohen

I completely agree with your last sentence but it's caught me by surprise since last week you posted this on a thread where the claim was for only £571 (so likely to be allocated to the Small Claims Track) in which there was no mention of the risks involved >




Di

Nothing like a quote taken out of context.

[warwick65]

Re: Hoist/Howard Cohen

Hi Amethyst
I have tried to look at both agreements and while I can clearly see the default charges later on at £12 which as you say does suggest the default terms and conditions I can not see any default charges on the earlier terms ( they may be there). When I look at my old cards ( all from 2004-2007) they all have charges within the terms and conditions although I never had a barclaycard ( well not for 30 years) so I suspect the agreement is old.

I also noticed it gave 5 days cancellation but i do not recall when it changed from 7 to 14 , wasn't that about 2006 ish as well - maybe before or am I getting confused with DN's - lots going on today

[ADDLED]

Re: Hoist/Howard Cohen

hi again. Ok, defence is in for the one i havent received an docs for.
ADD

[charitynjw]

Re: Hoist/Howard Cohen

I also noticed it gave 5 days cancellation but i do not recall when it changed from 7 to 14 , wasn't that about 2006 ish as well - maybe before or am I getting confused with DN's - lots going on today

Hi Warwick

For info, the change from 7 to 14 days (DN's) was effective from !st October 2006.
Sch 2 CCA 2006
http://www.legislation.gov.uk/uksi/2...chedule/2/made
It may prove to be useful info with some of the......more creative?......attempts at disclosing documents.

[ADDLED]

Re: Hoist/Howard Cohen

Hi everyone,
would you please be able to give me an update on the T&Cs above. I need to put in a defence super-urgently and i'm unsure as to how to proceed since I don't know if the T&Cs are a legit reconstituted copy of the original agreement. Differing dates/interest rates/charges on them etc.

[warwick65]

Re: Hoist/Howard Cohen

Hi [MENTION=6]Amethyst[/MENTION] was going to try and put a better version up- as for the T&C's did they come with the agreement ?

[ADDLED]

Re: Hoist/Howard Cohen

Hi @Amethyst was going to try and put a better version up- as for the T&C's did they come with the agreement ?

Hio Warwick, everything i received i scanned and posted above. Wehn i meant T&Cs i really meant the agreement, since itr incorporates them, i guess. sorry for confusion.
ADD

[warwick65]

Re: Hoist/Howard Cohen

I would need to see an agreement from 1998 or so to try an compare

I do think that these terms are just that so there was no executed agreement

Did you sign anything when you opened the account

If the answer is no then a positive assertion that you did not sign such an agreement would be a basis of a defence but do not get caught out of you may have signed one.