**WON** Terachi Shinya vs Hoist Portfolio

[Terachi Shinya]

Hello,

I have the same situation with Hoist Portfolio Holding 2 Ltd. as the previous poster.

I have a directions questionnaire regarding claim from Hoist Portfolio to fill out. I will choose to go for mediation, because as you say, the court will favour me trying to resolve this informally, although the claimant has not provided any evidence that they own the debt. My questions are:

1. Is it still the right time to ask the claimant to provide me with documents and evidence for the claim (under CPR 31.14) and do I have to?
2. Were they not obliged to provide me with such evidence with the initial claim?
3. What is the correct template I can use to send such request to the claimant asking for evidence and when should i do that?

I am appreciative of your response.

Many thanks,
Shinya

Hi all,
I hope you're good and that this brilliant site is helping in your quest for justice.
I desperately need help and advise for the next course of action regarding the below CCJ claim please. I believe it's for a card that I took out in 1999 and us

Received a claim? Yes
Issue Date: 29 Feb 2016
Amount approx: £6092.02
Claimant: Hoist Portfolio Holding 2 Ltd.
Solicitor: Howard Cohen and Co
Original Creditor: Barclaycard
Particulars of Claim: This Claim is for the sum of £ 3856.12 in respect of monies owing under an Agreement with the account no.xxxx xxxx xxxx xxxx pursuant to The Consumer Credit Act 1974 (CCA).
The debt was legally assigned by MKDP LLP (Ex Barclaycard) to the Claimant and notice has
been served. The Defendant has failed to make contractual payments under the terms of the
Agreement.
A default notice has been served upon the Defendant pursuant to s.87(1) CCA.
The Claimant claims
1. The sum of £ 3856.12
2. Interest pursuant to s69 of the County Court Act 1984 at a rate of 8.00percent from
the 22/07/10 to the date hereof 2042 is the sum of £ 1725.90
3. Future interest accruing at the daily rate of £ .85
4. Costs

The Claimant believes that the facts stated in this claim form are true and I am duly authorised
by the claimant to sign this statement
Signed Michael J McDonnell
(Claimant's Legal Representative)


Is the debt Statute Barred? Yes
List any letters you have sent:

1. CCA REQUEST to the CLAIMANT (Barclaycard)


BernieQ
Mr BernieQ
xxxx 1764822
Xxx Pxxxx Hxxxxxx
Dxxx xxxxxd
xxxxhax, xxsxex
xx1xxLx

Barclaycard
P.O. Box 10200
Wigston
LE18 9ER

Dear Sir/Madam

Re:− Account Number xxxx xxxx xxxx xxxx

Please treat this letter as a formal request for you to supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974.

I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit.

Your obligation also extends to providing me with a statement of account. I enclose a £1 postal order, which represents payment of the statutory fee payable under the Consumer Credit Act. I understand that a copy of my credit agreement should be supplied within 12 working days from the date of this letter.

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189.

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.


Yours faithfully,


BERNIEQ


2. CPR request to the CLAIMANT'S SOLICITORS (Howard Cohen and Co)


BernieQ
Mr BernieQ
xxxx 1764822
Xxx Pxxxx Hxxxxxx
Dxxx xxxxxd
xxxxhax, xxsxex
xx1xxLx

Howard Cohen and Co
Suite 1B
Joseph’s Well
Hanover Walk
Leeds
W. Yorks
LS3 1AB

Dear Sir,

Claim Number: Cxxxxxxxx

Request for documents mentioned in a statement of case under CPR 31.14

On the 10^th of March, 2016, I received a County Court claim form from yourself of which I have acknowledged receipt indicating my intention to defend in full.

To enable me to file my defence and counterclaim, I require inspection of documents you mention in your statement of case ahead of filing my defence on 24^th of March, 2016.

1. Agreement with the account.
2. Assignment
3. Default Notice
4. Formal Demand

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

You should note that this claim has not yet been allocated to a specific track and the provisions of CPR 27(2) are of no effect. Had your claim not been issued through CCBC the claimant would have been obliged to attach copies of the documentation upon which it relies to the Particulars of Claim. I, as Defendant, am entitled to see the documents on which the Claimant relies and which you will have to produce at trial. Disclosure at this stage will enable me to fully plead my case and further the Overriding Objective.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter.

If you require more time in which to comply with this request, you must tell me in writing and confirm your agreement to an extension of the time allowed for me to file my defence as allowed under CPR 15.5 so I may notify the court.
For your information and records I enclose a copy of the formal request for a copy of the credit agreement relating to this claim, pursuant to the Consumer Credit Act 1974, which has been posted to your client with the statutory fee of £1 today, 14^th March 2016

I look forward to hearing from you.
Yours sincerely



BernieQ


Any Other Info: So far I've not heard from both Barclaycard nor the Solicitors, but I received the below acknowledgement from the courts advising the next course of action

CASE NUMBER Cxxxxx


HOIST PORTFOLIO HOLDING 2 LTD -v- MR BERNIEQ

I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor).
The claimant may contact you direct to attempt to resolve any dispute, If the dispute cannot be resolved
informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of
what will happen.
Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of
your defence, After that period has elapsed, the claim will be stayed. The only action the claimant can then
take will be to apply to a judge for an order lifting the stay.

I also just received this Notice of Proposed Allocation to the Small Claims Track from the court to

Notice of Proposed Allocation to the Small Claims Track
Mr BernieQ
xxxx 1764822
Xxx Pxxxx Hxxxxxx
Dxxx xxxxxd
xxxxhax, xxsxex
xx1xxLx

In the
County Court Business Centre
Claim Number	Cxxxxxx
Claimant	Hoist Portfolio Holding 2
(including ref.)	Ltd
	207702790
Defendant	Mr BernieQ
(including ref.)
Date	25 April 2016

Important Notice
If you do not comply with this notice the court will make such order as appears to be appropriate. This could include striking out the claim or entering judgement.

TAKE NOTICE THAT
1. This is now a defended claim.

2.It appears that this case is suitable for allocation to the small claims track.
If you believe that this track is not the appropriate track for the claim, you must complete box CI on the Small Claims Directions Questionnaire (Form N180) and explain why.

3. You must by 12 May 2016 complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office the County Court Business Centre, 4th Floor St Katharine's House, 21-27 St Katharine's Street, Northampton, NN12LH and serve copies on all other parties.

NOTES FOR GUIDANCE
(i) The Directions Questionnaire can be downloaded from hmctsformfinder.justice.gov.uk
(ii) Further information on fees is available in the leaflet EX50 from hmctsformfinder.justice.gov.uk

The court office at the County Court Business Centre, 4th Floor St Katharine's House, 21-27 St Katharine's Street, Northampton, NNI 2LH. When corresponding with the court, please address forms or letters to the Court Manager and quote the claim number. Tel: 03001231056 Fax: 08703240166. Check if you can issue your claim


I need advise for the next course of action please.. Will it be advisable to comply and say 'NO' to the proposal or leave it alone and hope the court will strike off the case?

Please help...

Thank you

[nemesis45]

Re: Terachi Shinya vs Hoist Portfolio

Hello Terachi.

The claimant is not able to attach documents to a claim issued via the Northampton County Court Business Centre.

CPR 31.14: This is for a request for inspection of documents mentioned specifically in the Particulars of Claim only and yes you can do it now (should do it).

From what does the alleged debt arise credit card/phone/loan/ bank account/overdraft?

What exactly are the particulars of the claim? Please type in the details or post a copy of the claim form here after removing all personal identifiers.

I'm going to ask @Kati to kindly start a new thread for you so there is no confusion.
nem

[Kati]

Re: Terachi Shinya vs Hoist Portfolio

Hello,

I have the same situation with Hoist Portfolio Holding 2 Ltd. as the previous poster.

to LB ... I've moved your post to it's own thread xx

I'm going to ask @Kati to kindly start a new thread for you so there is no confusion.
nem

done :yo: xx

[nemesis45]

Re: Terachi Shinya vs Hoist Portfolio

[QUOTE=Kati;678807] to LB ... I've moved your post to it's own thread xx

done :yo: xx[/QUOTE

Thank You [MENTION=49370]Kati[/MENTION]

nem

[Diana M]

Re: Terachi Shinya vs Hoist Portfolio

I have a directions questionnaire regarding claim from Hoist Portfolio to fill out. I will choose to go for mediation, because as you say, the court will favour me trying to resolve this informally, although the claimant has not provided any evidence that they own the debt.

If you've received a DQ then you will have already filed your Defence.

What did you say in your Defence?

Di

[Terachi Shinya]

Re: Terachi Shinya vs Hoist Portfolio

Hi nem and Kati,

Thanks for your help so far. Here are the details of the situation.


The Particulars of claim were as follows:

xxxxx


The claim is for sum of xxxx in respect of monies owing under an Agreement with the account xxxx. pursuant to the Consume Credit Act 1974 (CCA).

The debt was legally assigned by MKDP LLP (Ex Barclays) to the claimant and notice has been served. The defendant has failed to make contractual payments under the terms of the Agreement. A default notice has been served upon the Defendant pursuant to s.87 (1) CCA.

The Claimant claims.
1. The sum of £5320.71
2. Interest pursuant so s69 of the County Court Act 1984 at a rate of 8% from ..... etc.
3. Future interest accruing at the daily rate of £1.48
4 Costs

xxxxxxx

To which I submitted the following defence:

XXXXXX

Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence for the following reasons:


1. This claim appears to be for an agreement regulated under the Consumer Credit Act 1974.

2. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

3. Claimant did not provide a deed of assignment of the debt, to show evidence that they are the legal owner of the debt.

4. The particulars of claim fail to state when the agreement was entered into.

5. The particulars of claim fail to state when the notice of the debt was served to the claimant. I have never received such notice.

6. The Claimants statement of case states that the account was assigned from Barclays to Hoist Portfolio Holding 2. The Defendant does not recall receiving notice of this assignment.

7. It is denied that Barclays 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.

8. The Claimant has failed to comply with s77 (1) / s 78 (1) Consumer Credit Act 1974 and by virtue of s77 (4) / s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

9. 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.

10. 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.

11. 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.

12. It is denied that the Claimant is entitled to the relief as claimed or at all.

13. Claimant did not provide evidence or the reasoning how the debt was assigned to it.

14. The claimant states in the particulars of claim that the debt notice has been served to the defendant. I have not received any correspondence from the Claimant prior to this claim

15. As a result, I do not see the how the claimant is the legal owner of such debt.

XXXXXX

Since then, I have received the directions questionnaire and have asked for mediation.

Considering the above, could you please advise how I should request for documents and evidence for this claim (under CPR 31.14)? This sounds like the most important next step from my end given my defense.

Many thanks,
Shinya

[Diana M]

Re: Terachi Shinya vs Hoist Portfolio

In Paragraph 8 of your Defence you refer to the Claimant's non compliance with s. 77/78 CCA.

Did you send a formal request including the £1 statutory fee, and if so on what date did you send it?

Di

[Terachi Shinya]

Re: Terachi Shinya vs Hoist Portfolio

In Paragraph 8 of your Defence you refer to the Claimant's non compliance with s. 77/78 CCA.

Did you send a formal request including the £1 statutory fee, and if so on what date did you send it?

Di

I have not sent it yet. Should I do it asap? Is it still okay time-wise?

[Diana M]

Re: Terachi Shinya vs Hoist Portfolio

I have not sent it yet. Should I do it asap? Is it still okay time-wise?

I would send a CCA Request asap.

You've made a vague reference to non compliance with it in your Defence so as a LIP you may be able to get away with saying you pleaded the issue in your Defence even though your request will have been sent afterwards.

I would also send the CPR 31.14 Request asap.

What is the deadline for filing your DQ?

Di

[nemesis45]

Re: Terachi Shinya vs Hoist Portfolio

OK.

Para 3. The Deed of assignment is the contract between the creditor and the debt purchaser and is considered commercially sensitive and confidential and would be of little value to your case. The creditor and/or send a Notice of Assignment when the debt is sold.

Para 14. Debt Notice? Do you mean a default notice? If so a DN would be sent by the original creditor not the claimant.

CPR 31.14. This is a request for inspection of documents mentioned the Particulars of Claim only.

i.e. The agreement. The Notice of Assignment. The Default Notice no other items may be requested.

However in post #1 you say the debt is statute barred yet this is not mentioned here/
Also please tell us the default date registered on credit files a useful " indicator". The date of the last ever payment to the account.

Have any payments been made via a debt management plan since the account was defaulted.

Default Notice: At on point Mercers ( Barclays in house collections dept. were issuing Default Notice on its own letterhead not Barclays do you recall receiving such?

nem

[Terachi Shinya]

Re: Terachi Shinya vs Hoist Portfolio

Hi Guys,

See my point-by-point reply:

Para 3. The Deed of assignment is the contract between the creditor and the debt purchaser and is considered commercially sensitive and confidential and would be of little value to your case. The creditor and/or send a Notice of Assignment when the debt is sold. - Sorry, I only kept it in the defense as it was in the initial template. I suppose I should have been referring to 'notice of assignment', which i have now received from their solicitor (see later post)

Para 14. Debt Notice? Do you mean a default notice? If so a DN would be sent by the original creditor not the claimant. - yes, I do not have a 'default notice' from anyone (it would have been from Barclays right?). Only a 'notice of assignment' which they have provided as per my CPR31.14 (see later post).

CPR 31.14. This is a request for inspection of documents mentioned the Particulars of Claim only.

i.e. The agreement. The Notice of Assignment. The Default Notice no other items may be requested.

However in post #1 you say the debt is statute barred yet this is not mentioned here/ -This was copied in from the initial post of another person, i'm not sure whether its barred or not.

Also please tell us the default date registered on credit files a useful " indicator". The date of the last ever payment to the account. - I don't know how I can retrieve this information as Barclays could not provide me with this. If I call them say they have no record of my account, which might make sense if it was sold to a debt collector. The statement of account the they have provided me as part of CPR 31.14 has balances in the period of April - September 2011 which show late fees/interest only but no payments into the account from my side (see later post).

Have any payments been made via a debt management plan since the account was defaulted. - No

Default Notice: At on point Mercers ( Barclays in house collections dept. were issuing Default Notice on its own letterhead not Barclays do you recall receiving such? - no I haven't got a letter for this (@nem, please check your private inbox on this for more).

I hope my answers clarify things.

Thanks so much so far.
Shinya

[Diana M]

Re: Terachi Shinya vs Hoist Portfolio

You filed your DQ in September so has this claim been transferred to your local county court yet and if so have you received a Notice of Hearing and Directions from the court?

Have you received any response to your CCA Request to Hoist?

Send a SAR to Barclays for the full history of your account asap. That way you'll know what happened and when - and more importantly what didn't happen.

Di

[Terachi Shinya]

Re: Terachi Shinya vs Hoist Portfolio

Hi Guys,

The case has now been allocated for a hearing in February.

In the meanwhile, i have received three documents from their solicitor in responce to my 24 November letter - Credit Agreement, Statement of Account and Notice of Assignment.

Credit agreement seems genuine although it is only 6 pages and it does not have credit card number on it.

Statement of Account does have the credit card number but only includes the balances and interest/late fee charges from April 2011 to November 2011. Please note that these are not my transactions but merely interest/late fees. Is this not too late for them to be filing a claim on me given that its been now 5 years?

It is strange that there is not letterhead to the statement - it is on two blank pages that say 'RESTRICTED' at the bottom. (I can upload this if its helpful).

Notice of Assignment - is a letter from Hoist Portfolio dated 6 November 2015 notifying that 'MKDP LLP has assigned all of its respective rights, title and interest .... to Hoist Portfolio Holding 2 ltd ("HPH2 Ltd") effective October 2015. etc. It also says that Robinson Way Limited was appointed by HPH2 Ltd to manage the account etc. (I can upload this too if helpful). - I thought that notice of assignment would be a letter from MKDP LLP and not HPH2 ltd? Is this the 'right' evidence from them?

I don't know why I they have not sent the 'default notice' as requested in my intial request dated 25 October 2016. Is this not a crucial part of the documentation?

Appreciate your guidance on the next steps!

Regards,
Shinya

[nemesis45]

Re: Terachi Shinya vs Hoist Portfolio

Hi Guys,

The case has now been allocated for a hearing in February.

In the meanwhile, i have received three documents from their solicitor in responce to my 24 November letter - Credit Agreement, Statement of Account and Notice of Assignment.

Credit agreement seems genuine although it is only 6 pages and it does not have credit card number on it.

Statement of Account does have the credit card number but only includes the balances and interest/late fee charges from April 2011 to November 2011. Please note that these are not my transactions but merely interest/late fees. Is this not too late for them to be filing a claim on me given that its been now 5 years?

It is strange that there is not letterhead to the statement - it is on two blank pages that say 'RESTRICTED' at the bottom. (I can upload this if its helpful).

Notice of Assignment - is a letter from Hoist Portfolio dated 6 November 2015 notifying that 'MKDP LLP has assigned all of its respective rights, title and interest .... to Hoist Portfolio Holding 2 ltd ("HPH2 Ltd") effective October 2015. etc. It also says that Robinson Way Limited was appointed by HPH2 Ltd to manage the account etc. (I can upload this too if helpful). - I thought that notice of assignment would be a letter from MKDP LLP and not HPH2 ltd? Is this the 'right' evidence from them?

I don't know why I they have not sent the 'default notice' as requested in my intial request dated 25 October 2016. Is this not a crucial part of the documentation?

Appreciate your guidance on the next steps!

Regards,
Shinya

Hi,

Thanks for the PM.

It would be useful to see the agreement to see I it is compliant can you post a copy after removing all personal information.

I understand your reservations about certain parts of what you have received s if you don't want to post it here examine the pages carefully to see if there are any anomalies eg. terms and or conditions which are mentioned only but do not appear anywhere in the documents.

nem

[Diana M]

Re: Terachi Shinya vs Hoist Portfolio

Notice of Assignment - is a letter from Hoist Portfolio dated 6 November 2015 notifying that 'MKDP LLP has assigned all of its respective rights, title and interest .... to Hoist Portfolio Holding 2 ltd ("HPH2 Ltd") effective October 2015. etc. . . . Is this the 'right' evidence from them?

I don't know why I they have not sent the 'default notice' as requested in my intial request dated 25 October 2016. Is this not a crucial part of the documentation?

They must provide the NOA from Barclays to MKDP as well as the NOA from MKDP to Hoist.

Yes the DN is a crucial part of the documentation. If they haven't provided it they may not have got it or maybe one was never sent to you in the first place (hence my suggestion of the SAR to Barclays).

If the hearing has been listed for February 2017 you will have time to get a response to your SAR.

Di