** STRUCK OUT** Robinson way/Hoist Portfolio court action

[stevethewogiebear]

Re: Robinson way/Hoist Portfolio court action

Thanks Kati, Nem pt2537,charitynjw for all of the advice to date, much appreciated.

Could I ask a couple of questions re the defense in relation to adding in the bits above as per this post chain;

The numbers to add in -do they sort of fit in with the original defense letter no's and should I delete what was in that number originally? or add these in addition?

Sorry but it's still not totally clear in my head-although I did get the bit about making the legislation quotes bulleted/more central.
Thanks Steve.
And can I send it on for further comment later?

[Kati]

Re: Robinson way/Hoist Portfolio court action

Thanks Kati, Nem pt2537,charitynjw for all of the advice to date, much appreciated.

Could I ask a couple of questions re the defense in relation to adding in the bits above as per this post chain;

The numbers to add in -do they sort of fit in with the original defense letter no's and should I delete what was in that number originally? or add these in addition?

Sorry but it's still not totally clear in my head-although I did get the bit about making the legislation quotes bulleted/more central.
Thanks Steve.
And can I send it on for further comment later?

Add these new bits in and alter the numbers accordingly

Post it up when you've done (or email it to me with a link to here) and we'll have a look xx

[stevethewogiebear]

Re: Robinson way/Hoist Portfolio court action

Thanks Kati, much appreciated

Steve

[stevethewogiebear]

Re: Robinson way/Hoist Portfolio court action

Kati, just to say I e-mailed an updated draft, forgot to mention I have highlighted a few bits-not sure if I still need these?

Thanks again
Steve

[Kati]

Re: Robinson way/Hoist Portfolio court action

[MENTION=6]Amethyst[/MENTION] [MENTION=551]pt2537[/MENTION] [MENTION=55034]nemesis45[/MENTION] ... new defence draft to look at please??

[stevethewogiebear]

Re: Robinson way/Hoist Portfolio court action

Thank you all, it's greatly appreciated

Steve

[nemesis45]

Re: Robinson way/Hoist Portfolio court action

@Amethyst @pt2537 @nemesis45 ... new defence draft to look at please??

Can't open the downloads, getting a " security" warning " unknown publisher??? Anyone know how to get round this please.

nem

[Kati]

Re: Robinson way/Hoist Portfolio court action

Can't open the downloads, getting a " security" warning " unknown publisher??? Anyone know how to get round this please.

nem

try this:

DEFENCE-----------------------------------------------------------------------------------------------
1.I received the claim XXXXXXXXXfrom theNorthamptonCounty Court on 18/06/2016

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

3.This claimappears to be for aCredit Card agreementregulated under the Consumer Credit Act 1974.

4.Itis deniedthat the Defendant has previouslyenteredintoan agreementwithTesco Personal Finance PLC (EX Tesco Finance) forprovision of credit.

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

5.The particulars of claim fail to state when the agreement was enteredinto.

6.The Claimants statement of case states that the account was assignedfrom Tesco Personal Finance PLC (EXTesco Finance)toHoist Portfolio Holding 2 Ltdgiving no
date. The Defendant does not recall receiving any notice ofthis assignment.

7.It is denied that Tesco Personal Finance PLC (EX Tesco Finance)served any Default notice on the Defendant pursuant to s87 ConsumerCredit Act 1974. The Claimant is required to prove that a compliantDefault Notice was served upon the Defendant.

8.On the 20/06/16I sent a request for inspection of documents mentioned in theclaimant’s statement of case under Civil Procedure Rule 31.14 toHowardCohen and Co.I requested the Claimant provide copies of the Agreement,Default Notice and Notice of Assignment.

9.Howard Cohen and Co (Claimants Solicitors)hasnot sent any of these documents to me.

10.On the20/06/16 Isent a formal request for a copy of the original agreement to HoistPortfolio Holding 2 Ltd pursuantto section78of the Consumer Credit Act 1974
along with the statutory £1 fee(returned by Robinson Way Ltd)

11.The Claimant has failed to comply with s78 (1)Consumer Credit Act 1974 and by virtue of s78 (6)Consumer Credit Act 1974 cannot enforce the agreement.

12.The Parties agreed to an extension to the time period allowed forfiling of my defence under CPR 15.5 to allow the Claimants additionaltime to produce the relevant documentation to evidence their claim;however they have failed to do so (letter from Robinson Way alreadysent to Court).

13.Under Civil Procedure Rule 16.5 (4) where the claim includes a moneyclaim, a defendant shall be taken to require that any allegationrelating to the amount of money claimed be proved unless he expresslyadmits the allegation. Therefore it is expected that the Claimant berequired to prove the allegation that the money is owed as claimed.

14.The Claimant Company appears on the register, however ‘thecompanies’ permissions to carry out regulated activities has lapsedand is no longer effective. The Claimant is therefore not authorisedby the FCA for regulated activities. A copy from the FCA register isannexed to this Defence (appendix 1).

15.An activity is a regulated activity under Financial Services andMarkets Act 2000 (FSMA) if it is “an activity of a specified kindwhich is carried on by way of business” and “it relates to aninvestment of a specified kind” (see section 22(1)FSMA).

16.“Specified” means specified by an order made by the Treasury (seesection 22(5)). Activities and investments are specified for thepurposes of FSMA by the Financial Services and Markets Act 2000(Regulated Activities) Order 2001 (“RAO”) (see article 4(1)).

17.Rights under a credit agreement are an investment of a specified kindfor the purposes of section 22 of FSMA (see articles 73 and 88D ofthe RAO).

18.Article 60B(3) of the RAO defines credit agreement and regulatedcredit agreement: “credit agreement” means an agreement betweenan individual or relevant recipient of credit (“A”) and any otherperson (“B”) under which B provides A with credit of any amount;
“exemptagreement” means a credit agreement which is an exempt agreementunder articles 60C to 60H;
“regulatedcredit agreement” means any credit agreement which is not an exemptagreement

19.Section 19 of FSMA prohibits a person from carrying on a regulatedactivity in the United Kingdom unless he is an authorised person oran exempt person (“the general prohibition”). Carrying on aregulated activity without authorisation or exemption under FSMA isan offence (see sections 19 and 23 of FSMA).

20.Section 19 FSMA States:-

19The general prohibition.
(1)Noperson may carry on a regulated activity in the United Kingdom, orpurport to do so, unless he is-
(a)an authorised person; or
(b)an exempt person.
(2)the prohibition is referred to in this Act as the generalprohibition.

21.Section 23 FSMA states

23- Contravention of the general prohibition.
(1)a person who contravenes the general prohibition is guilty of anoffence and liable—
(a)on summary conviction, to imprisonment for a term not exceeding sixmonths or a fine not exceeding the statutory maximum, or both;
(b)on conviction on indictment, to imprisonment for a term not exceedingtwo years or a fine, or both

22.The regulated activity of Debt collecting is specified by article 39Fof the RAO, which provides in relation to debts under creditagreements:

Debt-collecting
39F.—(1)Taking steps to procure the payment of a debt due under a creditagreement or a relevant article 36H agreement is a specified kind ofactivity.
(2)Taking steps to procure the payment of a debt due under a consumerhire agreement is a specified kind of activity.
(3)Paragraph (1) does not apply in so far as the activity is an activityof the kind specified by article 36H (operating an electronic systemin relation to lending).
(4)In this article, “relevant article 36H agreement” means anarticle 36H agreement (within the meaning of article 36H) which hasbeen entered into with the facilitation of an authorised person withpermission to carry on a regulated activity of the kind specified bythat article. {Emphasisadded}

23.It is clear that the Claimant has been and is continuing to seek toprocure payment from the Defendant under a regulated consumer creditagreement.



24.The Claimant cannot rely on an appointed representative to carry outregulated work which requires authorisation under the FSMA as theClaimant as principal must be authorised. The Claimant clearly is notauthorised under the FSMA and therefore cannot undertake regulatedactivities in its own name (see no.14 and appendix1).



25.Accordingly the Court should not allow these proceedings to continueas to do so would allow the commission of an offence via the Court.The Defendant invites the Court to note the Claimant named on theClaim form is the same company that does not hold the requiredpermissions under the FSMA. This is beyond doubt from the documentsannexed to this Defence (appendix 1).



26.I request the court orders the Claimants to provide the necessarydocumentation in order for me to fully plead my case else the Claimshould stand struck out.



27.In the event that the relevant documents are received from theClaimants I will then be in a position to amend my defence, and wouldask that the Claimants bear the costs of the amendment.



28.It is denied that the Claimant is entitled to the relief as claimedor at all.



Statementof Truth



TheDefendant believes that the facts stated in this Defence are true.









Signed…………………………………………



Dated............................................. ...............

- - - Updated - - -
[MENTION=86881]stevethewogiebear[/MENTION] ... you'll need to check the numbering (you've got two number 4's) and the spacing in the paragraphs xx

[nemesis45]

Re: Robinson way/Hoist Portfolio court action

Thanks [MENTION=49370]Kati[/MENTION]:goodjob:
nemxx

[pt2537]

Re: Robinson way/Hoist Portfolio court action

i do prefer to sign post my pleadings so that each part of the Defence can be distinguished. Its more a writing style but it makes life easier for the judge to follow what your case is and what youre saying.

[Kati]

Re: Robinson way/Hoist Portfolio court action

i do prefer to sign post my pleadings so that each part of the Defence can be distinguished. Its more a writing style but it makes life easier for the judge to follow what your case is and what youre saying.

signpost PT?? Care to explain?? (I'm having an 'off day' :sorry

[pt2537]

Re: Robinson way/Hoist Portfolio court action

http://prntscr.com/bsxjyu

Signposting , yes?

[Kati]

Re: Robinson way/Hoist Portfolio court action

aaah

thank you :yo: xx

[stevethewogiebear]

Re: Robinson way/Hoist Portfolio court action

Morning Kati/Nem/pt, thanks for all your help so far. I think I have the gist of it now and will send Kati what I hope is a good to go defence.

Could you take a quick peek and if it's good I will file today.

Cheers

Steve:tinysmile_grin_t:

[Kati]

Re: Robinson way/Hoist Portfolio court action

Final Draft??