** DISCONTINUED ** Hoist Portfolio Holding v Shinybee

[Shinybee]

Re: Hoist Portfolio Holding v Shinybee

There is an obvious answer

Talk to a solicitor, see what they think and what it would cost. Solicitors often give free initial advice

Better to know now if you are on to a loser so you can make a repayment offer than get a ccj.

Or they might say you have a case and a few hundred quid now saves you 16000 overall.

Not saying you must do anything just look at your options.

I did but it was going to cost a couple of thousand, which would mean getting into debt again : (

[Diana M]

Re: Hoist Portfolio Holding v Shinybee

I did but it was going to cost a couple of thousand, which would mean getting into debt again : (

What would cost a couple of thousand pounds? I don’t know who told you that!

Initial legal advice can be free.

Shop around and ask whether a CFA (No Win No Fee) option is available but beware any firm that charges a “Success Fee” or an “Uplift” if/when you win your case despite them recovering your legal costs from the other side (if they do).

Check out small firms such as sole practitioners who offer a fixed fee service too.

Di

[Shinybee]

Re: Hoist Portfolio Holding v Shinybee

What would cost a couple of thousand pounds? I don’t know who told you that!

Initial legal advice can be free.

Shop around and ask whether a CFA (No Win No Fee) option is available but beware any firm that charges a “Success Fee” or an “Uplift” if/when you win your case despite them recovering your legal costs from the other side (if they do).

Check out small firms such as sole practitioners who offer a fixed fee service too.

Di

The quote was for the two claims and to get them amalgamated and to hire a barrister etc.... I am already on the bread line so thats why Im on this site, hoping for some free advice in which way to proceed, but so far I'm none the wiser : (

[thedirtyhound]

Re: Hoist Portfolio Holding v Shinybee

Hi Di

I am a relatively new member to this site and have read a lot of the posts with great interest, as I have some potential claims against me.

However, I would like to pick up on your comment on 3 September that the two claims for £8k could possibly be merged into a single claim of £16k, in which case you say Fast Track costs could be an issue. Are you sure that is correct? The court might merge them to save time, presumably because the same arguments would apply to both. But the fact remains that each is a small claim. What you say is the exact opposite of what I was told.

One of the problems in dealing with matters like this is the advice you sometimes receive contradicts what others are saying, so I hope you don't mind me asking!

Best regards,

TDH

[Diana M]

Re: Hoist Portfolio Holding v Shinybee

Hi Di

. . . . I would like to pick up on your comment on 3 September that the two claims for £8k could possibly be merged into a single claim of £16k, in which case you say Fast Track costs could be an issue. Are you sure that is correct?

Yes

But the fact remains that each is a small claim. What you say is the exact opposite of what I was told.

Who told you that?

Was it a practising lawyer specialising in consumer credit claims (such as my firm) or was it something you read on a internet forum?

One of the problems in dealing with matters like this is the advice you sometimes receive contradicts what others are saying, so I hope you don't mind me asking!

I don't mind you asking at all

And thank you for your PM.

As my signature (below this post and all my posts) says this forum's rules doesn't allow me to give advice by PM so you can use my email to contact me if you like.

Di

[Diana M]

Re: Hoist Portfolio Holding v Shinybee

Perhaps I should clarify that the two disputed sums (original claims) would be 'judged' independently (on their differing legal arguments/pleadings) but under the same claim number with a "total sum claimed".

We (my firm) had a situation recently where this happened and the Claimant Discontinued one but not the other (incidentally we won the residual one so claim dismissed).

I recently (March this year) found myself in court with two ex MBNA credit card accounts which were assigned (or not ) to a debt purchaser. Both were on the same claim.

Mercifully the Judge (Recorder) found in my favour on both.

Here >

PRA GROUP (UK) LIMITED v DIANA MAYHEW – WIN

‘“RECONSTITUTED AGREEMENT” – IRREDEEMABLY UNENFORCEABLE”
“UNREDACTED DEEDS OF ASSIGNMENT – NO ASSIGMENT PROVED”

So, held Recorder Bellamy in PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017, at the end of a 3 day multi track trial, when dismissing PRA’s claim against our client.

Stale debts sued for on the back of 2 ‘reconstituted’ MBNA credit card agreements (May 1999 and October 2000) were held irredeemably unenforceable under CCA 1974. The evidence of an honest witness was preferred to that of so called “reconstituted agreements”.


After 3 days of close forensic examination of, and legal argument about, evidence and documents from both PRA and MBNA stating that our client’s specific debt had been assigned, the court held that no assignment had been proved.


Efforts, over many months, in earlier cases to force PRA into disclosure of un-redacted deeds and deep and sustained forensic challenge to the provenance of documents needed to prove regulatory compliance, finally drew back the veil. The reality behind bulk debt purchasing was revealed.


This decision shows that just saying an agreement is enforceable and producing a “reconstituted” copy does not prove that it is enforceable. Just saying an agreement has been assigned and producing a notice saying it has been assigned does not prove legal assignment.


Debt purchasers need to provide proof. If that means the pitifully few pence in the pound they pay for stale debts will increase because banks will now have to start keeping original evidence complying with regulatory consumer protection measures, it is hard to imagine many tears being shed, outside the City of London.

I have full knowledge of this case since I was the Defendant (Diana M is short for Diana Mayhew).

I was also the "Client" of Joanna Connolly Solicitors where I currently work. How ironical.

I have no shame in being taken to court for a debt which arose with MBNA when I was in "financial chaos" at the start of the Credit Crunch which was caused by the banks not me or any of you other debtors out there.

But I didn't personally owe PRA any money (as agreed by Recorder Bellamy) and that was the reason I decided to fight this case.

I wasn't only doing it for me, I was doing it for all the other debtors who've been served with claims for a MBNA debt which travelled the same assignment route as mine.

I was also doing it because the documents produced by the Claimant needed forensic examination. As Jo has said the court found them irredeemably unenforceable. There were two claims for two accounts and both credit agreements failed the test in court.

It was a win for the consumer not just me.

PRA have said that they will not be appealing the judgment.

Di (aka Diana Mayhew)

Link to thread > http://legalbeagles.info/forums/show...l=1#post723304

Di

[thedirtyhound]

Re: Hoist Portfolio Holding v Shinybee

Hi Di

Thanks for your reply.

The advice I was given was from a partner in a law firm that specialises in commercial matters. Small Claims and Fast Track are the exception rather than the norm for them.

But is seems that this gives way to an unfair situation.

If there were two debts of £8k, there could be a scenario where one debt went to Debt Purchaser A and the other to Dept Purchaser B, in which case it would be two separate claims of 8k under the Small Claims Track. Even if the defendant loses, he/she is not at risk on costs (unless, of course, they have been totally unreasonable and frivilous in defending the claim).

But if a debt purchaser acquired the rights to both claims, the Defendant would then suffer the additional risk of costs if he/she lost if it went ahead under the Fast Track.

Surely the defendant would be entitled to have the combined claim assigned to the Small Claims Track, regardless of value, because he/she would be otherwise in a far worse position?

Other than that, surely it would then be better for the defendant to keep them separate?

Obviously, this is a side-line issue from the main thread, so I won't take up any more of your time with it, but is seems fundamentally wrong from a moral point of view, even though I realise morals count for very little in legal cases!

Best regards,

TDH

[warwick65]

Re: Hoist Portfolio Holding v Shinybee

Although as a rule an advantage of small claims is a lack of costs, if you have a good case it is possibly better to go fast track because that way you may be able to get a CFA or no win no fee.

Of course not all no win no fees are the same as some firms ask for a success fee while others do not. Always worth getting more than one quote

[Diana M]

Re: Hoist Portfolio Holding v Shinybee

surely it would then be better for the defendant to keep them separate?

It's always open to either party to object to a court's decision to combine claims. And either party can challenge the other on any request they make to combine claims.

It's also open to either party to challenge the other party's request to allocate a claim above £10k to Small Claims Track and vice versa.

Howard Cohen frequently tell the court that "it's a simple matter of debt collection" on their Directions Questionnaire when they say it should be allocated to the Small Claims Track even when over £10k. They possibly want to avoid Fast Track cost risks if they lose, and the more thorough examination of their case/disclosure etc.

It also works the other way round. We (my firm) had a case this morning for a £3k debt which the DJ decided to allocate to the Fast Track for a two day trial due to the seriousness of the issues/arguments (the Claimant is unlicensed).

So I suppose the court's view is that justice must be done and if that takes a more in-depth examination of the evidence then that's what they'll do regardless of costs to either party.

In my PRA/MBNA case one of the legal arguments was assignment. The argument required a detailed examination of the unredacted Deeds so it made sense to try the assignment issue (for both claims) at the same time, since if the Deed assignment was flawed for one case/claim it would be flawed for the other.

Courts are also mindful of the cost to them of hearing a case (and the associated work in the lead up) so can sometimes think combining two claims is cost effective. A Costs Judge (Master) said the other day "Law is a Business".

Di

[Shinybee]

Re: Hoist Portfolio Holding v Shinybee

Thanks for input TDH, maybe side line but still relevant in gaining knowledge in this subject. Thanks.

[Shinybee]

Re: Hoist Portfolio Holding v Shinybee

I’m still being influenced by the success stories I read on GOODF in making an unless order, especially considering I made pre action conduct request to claimant before court summons...

If I were to go that way, would now be the time to do that, before claims are allocated to a potential fast track?

[Amethyst]

Re: Hoist Portfolio Holding v Shinybee

If you're looking into an Unless order there's a bit of an example here - > http://legalbeagles.info/forums/show...order-at-court -

[Diana M]

Re: Hoist Portfolio Holding v Shinybee

in making an unless order, especially considering I made pre action conduct request to claimant before court summons...

If I were to go that way, would now be the time to do that, before claims are allocated to a potential fast track?

It's not only about timing it's about the likelihood of success with an Unless Order and whether it would only spur them on to try harder to source or reconstitute documents.

At the moment both your claims are each below £10k so allocation to the Fast Track is not staring you in the face.

However take on board the fact that if you make an Application (or two) for an Unless Order the court could decide to combine the claims at that point. It's a risk.

Di

[Diana M]

Re: Hoist Portfolio Holding v Shinybee

The quote was for the two claims and to get them amalgamated and to hire a barrister etc....

If your two claims were amalgamated then they would be allocated to the Fast Track where you would be at risk of paying the other side's legal costs if you lose which could run into thousands of pounds.

Did the lawyer explain that to you?

You should only have to pay a barrister if you need representation in court. The aim should be to get the claims Discontinued before they get to Trial.

Di

[Shinybee]

Re: Hoist Portfolio Holding v Shinybee

I’m not sure why lawyer was keen to amalgamate to fast track. Maybe they thought I had a good case... but then I should have been NW NFee...

How about if made an Application for one claim? ...to “break” up the claims.

SB