Notice of proposed allocation to the small claims track

[Speersy]

Re: Notice of proposed allocation to the small claims track

Hi Warwick,

yes thats correct the loan from welcome was hire purchase purchase on a car. Which I think means it was secured against the car.

they are claiming for £4831.31 for the HP plus court fees and legal fees totalling £5096.31 so yes it is going through the small claims court

thanks

[Speersy]

Hello,

This process has taken some time but has now got a court date of the 8th of March.
I have received some documents from the solicitor which shows a loan history on 05/03/10 the debt was "written off" from Welcome Finance which i'm assuming is the default date?
If this is the case then when they made the claim on the 05/05/17 this was over the 6 year period that they had to claim this back.

Could someone help me with how to submit a limitation defence please?

Thanks

[Amethyst]

8th May ?

Your defence was lack of documents and statute barred ?

Did you specifically include non compliance with CCA 1974 s.77-79 in the defence ? and still no copy of the agreement - just the statement ?

You've paid nothing nor acknowledged the debt since before 5/3/2010 and they haven't provided any evidence to the contrary ?

[Speersy]

Hi Amethyst,

They have finally sent over documents on the 28th of March but being away I have only seen them on Friday. They sent a copy of the regulated credit agreement, statement of Account and Notice of Assignment (No Default Notice)

I sent a CPR 31.14 request back in May or July but have only received the documents on the 28th of March as I stated in my defence that I was not able to submit a full defence due to the claimant not sending out the documents after my CPR 31.14 request. I have not specifically include

CCA 1974 s.77-79 as I did not have all the required information to submit a defence.

I have paid nothing or acknowledged the debt since 5/3/2010 and no evidence has been provided to me to say otherwise.

Thanks

[Amethyst]

Ok so do you have a date on the hearing letter by which to exchange witness statements ?

[Speersy]

Sorry my mistake the 8th of May is when they have to pay the court fee the hearing date, the 4th of June is the hearing date and the witness statements need to be sent over 14 days prior to the 4th of June, sorry about that.

My concern is that they have let it get this far I thought they would of pulled the claim by now.

I was going to write to them with something like the below because I feel like i'm missing something??

Dear Sir,

I received your documents that you sent out to me and have noted from the Loan History that the debt was written off from Welcome Finance on the 05/03/2010 which I’m assuming is the default date as this hasn’t been clearly specified in the documents. If this is the date of the default then this claim is statute barred and I will need to ask the court to set aside this debt so I can submit a limitation defence. Please note that in my letter dated the 22/05/17 sent to Hoist Portfolio 2 Limited I requested a copy of the default notice which has still not been produced.

When I received this claim from the county court I had checked my credit file and found no record of this debt which in a letter that you have included says that it would be showing as Hoist Portfolio Holding 2 Limited.

Due to the documents presented I am confident that the County Court will acknowledge this as a statute barred debt. If you have any evidence to prove otherwise then this needs to be sent over to me for review.

Yours Faithfully

[Amethyst]

Okay hang fire let me have a little edit before you send anything - you want to try get them to discontinue prior to payinghearing fee and having to write witness statements presumably ?

First though - who is the claimant ? is that Hoist ?

You have the credit agreement - any chance of a copy of that pls ( remove personal info)

When was the agreement started, and how long was the term of the loan , ie when would it have finished had you completed payments ? That could affect the statute barred period ( aka the BMW v Hart case )
Did you hand back / VT the vehicle or was it repossessed at all ?

[Speersy]

Thanks Amethyst, yes I would prefer that but due to being away I'm not sure if I've missed that date

Yes the claimant is hoist portfolio holding 2 limited.

I'm just removing the PID from them now give me half hour and i'll try and PM them you

the agreement started on 15/09/08 and was for 36 months but looking at this credit agreement it doesn't mention hire purchase? it says fixed sum loan agreement.....

[Speersy]

Hi Amethyst

docs are on this link, I've had to zoom right in on the credit agreement as they've photocopied it so small so each page is spread over to files

https://1drv.ms/f/s!Ail38HIJGq2-hRbom_g1P_yz6LAZ

Thanks

[Amethyst]

They work fine Thank you just having a read through

[Diana M]

the claimant is hoist portfolio holding 2 limited.

. . . . . the agreement started on 15/09/08 and was for 36 months but looking at this credit agreement it doesn't mention hire purchase? it says fixed sum loan agreement.....

Howard Cohen's letter suggests their intention to apply for a Summary Judgment now that they have produced documents (you say your Defence was mostly "no documents").

It's unlikely they'll discontinue based on that letter especially a claim for over £5k where they believe they will not be at risk of your legal costs if they're unsuccessful (unless you instruct a solicitor who may claim 'wasted costs' against them). In short they've nothing to lose except what they paid for the debt which may be minimal (possibly only 10% of the book value).

If you also pleaded Statute Barred in your Defence then that argument would still stand but there may be all sorts of variables to consider other than the last payment. You say this was a Fixed Sum Loan not HP.

(What happened to the vehicle?)

Have you sent a Subject Access Request to Welcome to get the full history of the account? That's essential because the Transaction Log can provide you with valuable evidence.

Hoist Portfolio is unlicensed.

You may need to file an Amended Defence (it'll depend on a number f things) and/or a Witness Statement.

Have you sent any Part 18 Questions?

I wouldn't write them a letter. A lawyer would say "we don't litigate through correspondence". Careless words, however well intended, could lose you this case.

Di

[Amethyst]

Okay so agreement Sept 2008 for 3 years ( starting 1 month later ) so last payment would have been October 2011 ... so 6 years would be October 2017 ... and the claim was issued July 2017. This is going off BMW v Hart arguments where they decided cause of action for SB didn't start until the account was naturally terminated at the end of the original term as that's when they were entitled to call it in.

However in your case the debt did carry on for ( far too long) a while after the last payment so there were around 12 missed payments overall then it was clearly written off on 5/3/2010 and so their BMW v Hart argument against statute barred argument should fail. There doesn't seem to have been any default notice which is what they may rely on for saying cause of action didn't start until the end of the original term. I'll find a link to the judgment, I think it wont apply but its worth consudering.

The notice of assignment is only from MKDP to Hoist, not from Welcome to MKDP - so they have an issue there.

Doesn't seem to be HP or secured either btw - its fixed sum to consolidate(pay off) a previous loan you had with them and give you £1.5k cash ?

[Amethyst]

Sorry didn't see Di's post, she snuck in while I was looking at the docs lol...

[Speersy]

Hi Di,

Is the summary judgement different to the CCJ that they have already lodged against me?

That is true my defence was that they hadn't provided any of the documents but also that I believed this to be statute barred, I've added a copy of my defence on the link.

In all honesty I'm not sure what this is for I remember having a car and ran in to a cash flow problem and took a loan out which then got me further in to debt. looking through this it doesn't appear to be for the car at all, unless i'm missing something with this?

The vehicle got scrapped as it was beyond repair

I haven't sent a subject access request or part 18 questions I've only sent to the courts a directions questionnaire and CP 31.14 request. up until this week I've heard no more off claimant or solicitor since May of last year

I was expecting to submit an amended defence as at the time I couldn't submit a full defence but I'm unsure as to what I need to put in my defence?

Ok thanks I won't send them the letter.

Hi Amethyst,

Ok so that is the reason that they haven't sent over the default notice because there wasn't one issued? that hinders my statute barred defence then I guess. If they written it off in March 2010 should this not of been the date of the default?

is the notice of assignment from welcome to MKDP something I should put in my defence?

I'm really not sure what the purpose of this loan was for as bad as that may sound, I'm really struggling to remember, I vaguely remember the loan but as to its full purpose I'm not quite sure, I thought it was around the time I went from a well paid job to another job that wasn't as well paid and was struggling for money at the time.I don't think it was to consolidate another loan though but I may be wrong, I remember there was a lot going on at the time in terms of changes sorry for being so vague but its all pretty cloudy.

What should my next steps be in terms of defending this claim? or is my defence weak?

Thanks

[Diana M]

Hi Di,

I haven't sent a subject access request or part 18 questions I've only sent to the courts a directions questionnaire and CP 31.14 request. up until this week I've heard no more off claimant or solicitor since May of last year

I was expecting to submit an amended defence as at the time I couldn't submit a full defence but I'm unsure as to what I need to put in my defence?

. . . .

is the notice of assignment from welcome to MKDP something I should put in my defence?

. . . . . What should my next steps be in terms of defending this claim? or is my defence weak?

^ ^ ^ that's the first time MKDP has been mentioned on this thread which started in July last year (or have I missed that important fact somehow?).

This suggests there have been two assignments in the chain which need to be proved.

Paragraph 7 of your Defence is confusing on this crucial assignment issue and I've not seen the Particulars of Claim. (There seem to be two Paragraph 7 on the document you uploaded - I'm referring to the first one.)

Paragraph 8 of your Defence says you sent a CPR 31.14 Request to Howard Cohen but no mention of you sending a s77-79 CCA Request to Hoist. Did you?

If you haven't sent a CCA Request to Hoist then your Defence is weak at the moment. If you don't plead legal arguments in your Defence you cannot raise them in court at a later date. You may need to file and serve an Amended Defence which will need permission from the court unless the Claimant is happy to consent to this (which I doubt).

I think your next step should be to contact a lawyer who specialises in Consumer Credit claims and unlicensing issues to get the help you need (initial free advice is available).

And send a s 77-79 CCA Request pronto!

Plus send a SAR to Welcome since time is running out for you with the Trial listed for June and possibly a Summary Judgment Application in the pipeline.

Di