Hoist Holdings

[Mrpastry]

My partner is in court tomorrow regarding an alleged debt owed to Abbey National..now Santander from 2002.
Unfortunately she made payments to Robinson Way which then passed to Hoist Holdings and falls outside of the 6 year time limit just
We have requested they produce the Deed of assignment which they have refused to do on the basis of the following
"We have provided all the evidence they intend to rely upon at the hearing" "Further we are not obliged to provide a copy of the deed of assignment as this is commercially priviledged document and would only be provided upon an order of the court"
My question is what would be the legal point of law we can use in court to give to the Judge requiring this as absolute proof of the debt being owed to Hoist Holdings.
We feel we have them on the backfoot but are worried that the Judge may take all the other info they have provided and suggest that is proof of the debt.We realise that the Deed of Assignment is essential for our case to show what they paid for the debt and to show they have a right to pursue it. Thanks all...

[Amethyst]

Re: Hoist Holdings

What is the actual debt with Santander ? overdraft / credit card/ loan etc ?

What was your defence ? Have Hoist sent you copies of the agreement / default notice / notice of assignment etc ( and that's why you're concentrating on the deed specifically ?)

How much is it for ?

[MENTION=87380]Diana M[/MENTION]; could probably answer this question.

My question is what would be the legal point of law we can use in court to give to the Judge requiring this as absolute proof of the debt being owed to Hoist Holdings.

[Mrpastry]

Re: Hoist Holdings

Hi thanks for the quick response.
The debt is for an overdraft c£2,661.55 +costs Small claims track. Initial defense was on the out of time basis.But my partner had been paying amounts off until 2009 -June 2012 to Robinson Way.Copies of the agreement with Abbey sent to us this week plus default notice. However no deed of assignment which they have refused to provide.They say a notice of assignemnt was served in 2004 but they don't enclose this in their papers.
They say its a contractual agreement and that they had assignment from Santander...but will not show that assignment.
I feel this may be our only point of argument?..

[warwick65]

Re: Hoist Holdings

Hi
The caselaw for sight of the Deed of assignment Van Lynn Developments v Pelias Construction

I don't have a copy of the judgement but essentially Lord Denning said the Deeds should be available to prove their right to bring the claim.

That, i am afraid is about all I can tell you although I believe it is a binding judgement and has not been altered since

[Mrpastry]

Re: Hoist Holdings

Thanks Warwick65 a virtual beer is on its way to you...

[Diana M]

Re: Hoist Holdings

What was your defence ? Have Hoist sent you copies of the agreement / default notice / notice of assignment etc ( and that's why you're concentrating on the deed specifically ?)

@Diana M; could probably answer this question.

There is a difference between proving the debt was legally assigned (the Deed) and whether the Claimant is currently unlicensed and has/has not a legal right to bring the claim.

If either/neither legal argument was not pleaded in the Defence then the OP’s partner will have difficulty raising it/them at tomorrow’s Hearing.

Di

[Mrpastry]

Re: Hoist Holdings

Thanks Diana...seems the defense statement was not the best...the Judge however appears to have allowed a further request for information and disclosure within which Hoist have failed to copy the Deed of assignment and the original notice of assignment from Santander to Robinson Way to my partner as we requested.They gave most other information.
Realistically are you suggesting it may be worth settling at this point pre-court...
Also my apologise to all on here
the court date is tomorrow not today so we have another day to decide what direction to go in...

[Amethyst]

Re: Hoist Holdings

If you can post a copy of the Defence then there will be a better idea what you have available to you to argue. Did you receive their documents with witness statements by the date given by the court or have you just received them ( ie. could you need to ask for adjournment)

Also

Judge however appears to have allowed a further request for information and disclosure

did the Judge give an order for specific documents ?

[Mrpastry]

Re: Hoist Holdings

Morning Amethyst.
The original defense was based on the time issue an overdraft taken out in 1999 as payments had been made up till c2013 to Robinson Way...however another letter was drafted to Howard Cohen and sent to the Judge in July when he appeared to accept this letter as he stated in August that the claimant
"pay for the court fee or file a properly completed application(ie one which provides all the required information in the manner requested"

The letter content we sent in July is as below

1.The Defendant denies monies are owed to the Claimant as alleged in the Particulars of Claim and does not recognise the assertion that any debt has been legally / Absolutely Assigned to the Claimant and as such the Claimant is put to the strictest of proof, including but not limited to:

2. Pursuant to s.74A and s.74B of the Consumer Credit Act 1974 (CCA1974) the Original Signed Overdraft Credit Agreement, along with a copy of the original Terms & Conditions and any subsequent changes in said Terms & Conditions (referred to as the ‘contract’ within the Particulars of Claim) and show how the Defendant has entered into an contract/agreement.

I. Should the Claimant continue with the contention the Alleged Overdraft Agreement is not covered by the Consumer Credit Act, then I request a copy of the Original Signed Contract mentioned within the Particulars of Claim and that the Original be made available for examination at any subsequent Hearing.

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 £2661.55

III. Also, as this is an Alleged Debt, I believe Penalty Charges may have been applied to the Account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999. Therefore, I would request details of each and every Penalty Charge applied to the Account along with details of their lawfulness (i.e. if the charge is stated as being for ‘Administration’ what Administration was undertaken to support the Penalty Charge being applied) along with details of any Interest imposed against each Penalty Charge applied.


IV. Show how and when the contract 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.

V. Show how the Claimant has the legal right, either under statute or equity to issue a claim by providing the following:

a) A copy of the Default Notice and Certified Copies of how this was served upon the Defendant.

b) As claimant has stated the debt was ‘assigned to the claimant a copy of the Legal / Absolute Assignment (as per Section 136 of the Law of Property Act 1925), including, but not limited to, a copy of the Deed of Assignment and / or Deed of Tripartite Novation, duly executed in accordance with Sections 74 (as amended) of the Law of Property Act 1925.

c) A copy of how the Defendant was served with the aforementioned Legal / Absolute Assignment.

d) A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was served upon the Defendant.

e) Details of the costs paid by the Claimant to the Original Owner for the Alleged Assignment of the Contract (as referenced in Section 1 of the Particulars of Claim).

VI. As per Civil Procedure rules 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.

VII. Also, should any amount be inclusive of interest, the Defendant denies interest is payable in accordance with Section 69 of County Courts Act 1984 and again the Claimant is put to the Strictest of Proof as to the amount in full they allege to have paid for this alleged debt).

13. A request for the originals of all documentation upon which the claimant intends to rely be made available for examination at any subsequent hearing.
14. Also, in my defence, I am not a Solicitor and after having read the Particular of Claim I cannot see any legislation has been quoted in support of the Claimants claim against me, which leaves me unsure under which Statutory Instrument this Claim has been brought. Therefore, again to be able to properly defend this claim I would request full details of the actual legislation the Claimant believes gives them a right to make this claim, as surely no claim can succeed without this being quoted in the Particulars of Claim?

Statement of Truth I believe the facts stated within this Defence to be true.

Below our most recent letter to Howard Cohen as they failed to supply the deed of assignment(refused to on the grounds of commercial confidentiality. Or the original deed of assignment that should have been sent at the time saying Santander had sold the debt to Hoist Holdings

Under s.136 of The Law of Property Act 1926, please take note that for any absolute Assignment to be effective, the Assignment must have been made to you, the assignee, in writing, and must have been sent to you under the hand of the assignor. In this case, SANTANDER.

With reference to point 9 of your Witness Statement, please can you provide evidence of the notice which you claim was served upon me, the defendant, and to which address this was served and by what means this took place.

In line with the above, and since I am directly affected by the contents of any such Assignment, you cannot rely upon the Deed of Assignment being ‘Commercially Sensitive’; please take note that I am entitled to see the written Assignment to which you refer. This document may also be entitled, or referred to as the ‘Sale of Agreement’ or Deed of Assignment.

I hereby request to be sent a full copy of the written Assignment, including any and also sale agreement clauses and terms that may be mentioned or referenced within it; should you choose to disregard this, please be so kind as to advise the Law upon which you rely that allows you to redact or withhold such details.

In support of my request to see the Assignment I refer you to established and binding Case Law; please refer to Van Lynn Developments Ltd v Pelias Construction Ltd [1968] 3 All ER 824 and specifically the comments made by Lord Denning, repeated below for your convenience.

“It seems to me to be unnecessary that it should give the date of the assignment, so long as it makes it plain that there has, in fact been an assignment, so that the debtor knows to whom he has to pay the debt in the future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge”.

Apologise there is a lot here....

[warwick65]

Re: Hoist Holdings

Erm
I'm a little confused

In the instructions from the judge about 'pay for the court fee or file a properly completed application(ie one which provides all the required information in the manner requested' were there any further instructions about disclosing documents because I believe the 'properly completed application' would be a standard phrase and mean a form for fee remission

[warwick65]

Re: Hoist Holdings

Did you file your own WS as ordered by the court?

[Mrpastry]

Re: Hoist Holdings

Hello Warwick65...
No instructions from the Judge about disclosure of documents.And no no witness statement from us to the court.Only letters sent to Hoist copied into the Judge.Should we have sent a witness statement?...and what should the contents have been?...is it too late for tomorrow?
I'm starting to feel we have cocked up with the defense ...we asked for further disclosure in our letter to Hoist in July when they supplied everything but the Deed of assignment and copy of re-assignment from Santander to Hoist.
As my partner had paid monies to Hoist agents previously I am concerned the Judge will take that as acceptance of their assignment by my partner without any other evidence needed from Hoist.Hoist have produced the original copy of the agreement with Abbey for the overdraft plus copies of bank statements showing payments to the Hoist collection agents.
Have received an email a short while ago from Hoist saying they will not produce any more evidence unless ordered by the court and will rely on what they have in court tomorrow.

[warwick65]

Re: Hoist Holdings

Hi Mrpastry

I am unable to comment on if you have cocked up or not as I have not seen the chain of documents, neither , I am afraid can i make any recommendations.

However, it is usual for directions to come from the court saying when the court fee needs to be paid by the claimant and also a date when witness statements including any documents are to be served and exchanged between all parties.
[MENTION=6]Amethyst[/MENTION] do you have any ideas

If HC try to get the defence struck out because there is no witness statement you could ask/beg/grovel and ask for an adjournment so you can serve a WS. If by chance you did not get a copy of any orders asking for a WS then tell them.

[Amethyst]

Re: Hoist Holdings

Check your hearing letter, normally second page, says about exchange of documents and Witness Statements - what does that say ?

Did Hoist send a Witness Statement to you with their exhibits ( docs ) ?

[Diana M]

Re: Hoist Holdings

Hoist have produced the original copy of the agreement with Abbey for the overdraft plus copies of bank statements showing payments to the Hoist collection agents.
Have received an email a short while ago from Hoist saying they will not produce any more evidence unless ordered by the court and will rely on what they have in court tomorrow.

Were those documents produced as Exhibits with Hoist's Witness Statement?

Di