Hoist Portfolio 2/? claimform - old Barclaycard 'debt' ***Claim Still Struck Out ***

[shamrocker]

I would agree that this thread is getting over run with side arguments, but if I can just bring forward one element of the defence:

 

"If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant."

 

Does this denial that an agreement/contract was breached/existed give scope to challenge the claimant on the existence of a valid agreement?

 

P.S. That's besides the s.78 argument - which, I should add, a barrister I stood against argued quite convincingly that it wasn't a valid defence as the agreement was ended.

[mercyblue]

Absolutely agree martin. This however maybe of more interest. The defendant actually has the case dismissed for an invalid DN. Numerous things are interesting here the fact that barclaycard dates and account numbers are all over the place. However the bits that interest us here start at paragraph 10

"I am then asked to consider the issue of the default notice purportedly served at the same time in February by this Claimant on Mr. Burney. I have a copy of this document. It is dated 3rd February 2011"

 

We see at the start this person fell into arrears at 2006 and at para 2

 

"What is first of all a little surprising in this case is that it does not appear that Barclaycard took action. Some statements of account are exhibited in this case in the Claimant's bundle. They show a balance and the final statement (page 27 of the exhibit bundle) of £1,072.62. The date of that is 21st March 2007. Nothing more recent is produced in the way of statements. All goes quiet"

 

So here we have a dn issued 4 years later!

 

para 11

 

"What of course is important with default notices is that they should clearly state the nature of the breach of the terms of agreement by the defendant and what is required of the defendant to remedy such breach if it can be remedied. Curiously, the skeleton argument from the Claimant in August argued that we do not have to consider a remedy because the agreement has already been terminated. But by their own concession there is no evidence of a default notice ever having been served on behalf of Barclaycard, no evidence at all that this credit agreement had ever been effectively terminated before"

 

Then at para 15

 

"It is also argued that notwithstanding such technical breaches of the default notice, if the Defendant cannot show any prejudice then the notice nevertheless should be allowed to stand and the Claimant should be allowed to proceed with the action. First of all, it does seem to me inherently prejudicial if a notice is defective in more than just de minimis fashion. Mr. Burney points out that service of a default notice means an adverse credit report with a consequential adverse credit rating. It might be suggested perhaps he already had some adverse information on his credit rating because he had been in arrears with this agreement back in 2005 and 2006. Perhaps his argument on prejudice cannot be taken too far, but nevertheless I consider this to be more than de minimis and I am of the view that this default notice is not valid, which means the Claimant has to start again"

 

Its available here http://www.bailii.org/ew/cases/Misc/2011/23.html

 

Everyone can make their own view on that (of course the issue of sb didn't arise).

[Wandsworth2015]

I have never seen an agreement, I have no paperwork. I created all these debts in the support of my business at the time in 2005 / 2007, no personal transactions were made, but they were in my name. All I've ever received is a reconstituted bank statement which proved nothing other than when the last payment was made and when the first and subsequent payments were missed.

 

Never received a "we are still trying to get a copy of your agreement"....

 

In the light of the above comments, I've updated the witness statement as follows, the use of Equifax is purely because nobody is proving they have any data and this was my only source of reference, I felt it important to point that out.

 

My points of the statement are, prove the agreement is valid, prove the dn is valid and then prove that it's not SB

 

In the Wandsworth County Court at CLAIM NO:

 

BETWEEN:

Hoist Portfolio Holding 2 LTD, Claimant

-and-

Defendant

 

 

WITNESS STATEMENT OF

I, the defendant in this claim, makes the following statement believing it to be true and state as follows:

 

1. It is admitted that I have held two credit card accounts with Barclays in the past, over 6 and a half years ago. One account was opened in approximately 2007 and the other approximately 2005, both were used to facilitate business transactions within a limited company I founded in 2002.

 

2. The limited company was placed into administration on 17th Sep 2009 and I resigned as a director on the same day. The administration company was Bond Partners LLP.

 

3. Oct 2009, Due to my financial circumstances, the administrators advised me to place personal debts into a debt management company.

 

4. Oct 2009, the last payment made to any Barclays account.

 

5. Nov 2009, Barclays were informed of my financial situation and my intentions were completed at the same time.

 

6. 29th February 2016, the Claimant's issued a claim, related to a Barclays agreement with account no. for £16,765.15.

 

7. March 2016, I requested a copy of the agreement, default notice and supporting documentation from the claimant solicitors, Howard Cohen and Co, pursuant to CPR 31.14, in order to prove the validity of the claim. I received no documentation.

 

8. June 2016, both Barclaycard accounts I held have not been used for at least 6 and a half years, and without supporting documentation I had no way of proving the validity of this claim. I therefore contacted the Equifax credit reference agency who hold an accurate history of my account on behalf of creditors to substantiate the claim.

 

9. June 2016, according to the Equifax credit reference agency, Hoist Portfolio Holding 2 LTD was registered against my name. However, I have never signed an agreement with Hoist Portfolio Holding 2 Ltd.

 

10. 23rd June 2016, Hoist Portfolio Holding 2 LTD confirms to Equifax stating, “the default information is correct and should remain unchanged”. The default information being, the default notice dated 29th July 2010, as per the particulars of the claim. See document 2.

 

11. 14th July 2016, Barclaycard confirmed to Equifax that the default notice date was incorrect and confirmed that the “BarclayCard default was over 6 years and the account has been deleted”, see document 3.

 

12. At present I have no way of cross referencing either account without supporting documentation, and at this time, Hoist Portfolio Holding 2 LTD, disagree with Barclays. This again brings the validity of the claim into dispute.

 

13. However, should an agreement and supporting evidence be produced to support this claim. And making the assumption that the Hoist Portfolio Holding 2 LTD default noticed dated 29TH July 2010 is correct, the default has still been served several months after the initial breach and therefore, the cause of action has been delayed by 9 months and the limitations period extended to 6 years and 9 months.

 

14. Therefore, in the event the claim is valid, the Defendant contends that the Claimant's claim issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

 

15. The Claimant's claim to be entitled to payment of £16,765.15 or any other sum, or relief of any kind is denied

 

I believe that the facts stated in this Witness Statement are true.

[catquest]

I would agree that this thread is getting over run with side arguments, but if I can just bring forward one element of the defence:

 

"If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant."

 

Does this denial that an agreement/contract was breached/existed give scope to challenge the claimant on the existence of a valid agreement?

 

P.S. That's besides the s.78 argument - which, I should add, a barrister I stood against argued quite convincingly that it wasn't a valid defence as the agreement was ended.

 

I suspect most agreements that people are dealing with have not ended. Barclaycard say in their terms and conditions that the agreement continues until the full balance is paid off.

[Wandsworth2015]

Unless the agreement is breached and mine is breached and this was made clear right from the outset, I took advice on that at the time, Barclays just didn't like that I was taking control of the situation and they weren't.

 

They continued for some time to get me to pay anything, even £1. But that would of mean't opening a whole can of worms with all other debts, preferential creditors rules and the fact that I had taken advice to get a debt management company involved, which turned out to be a bad idea. Anyway, I am where I am.... financially I never recovered, but I have my sanity back.

[shamrocker]

I think you could be tighter on some of the points and use it to definitively push the onus onto the claimant. I'll give you that feedback this evening when I have more time, though I should stress that I'm no expert by any means.

 

It would be interesting to get some general pointers from Andyorch, particularly as to the content - i.e can the CCA & CPR requests be used to draw upon the lack of agreement and account statements, breach of s.77/78, etc.? Is it even relevant in terms of providing a last line of defence behind your SB position?

[dx100uk]

Point 9 is pointless and sounds like fmtl rubbish

You don't need to sign any agreement with a debt buyer

They inherit all rights upon sale by the OC

[Andyorch]

You have submitted a defence pleading the claimant's claim is statute barred......the problem you now face is that you are trying to adapt a witness statement to cover all possible scenarios.

Dont...you are simply diluting your defence and raising further issues for the claimant to use against you.

 

The claimants does not refer to any of the points you raise within your witness statement ...stick to the points of statute of limitation...a short synopsis of the delay in issuing a default notice to support your defence may be of benefit and in support.

 

I wouldn't bother with any other points raised above...its irrelevant to your pleadings.

 

Andy

[martin2006]

The OP's defence is one of SB'd.

 

For a claim to be considered SB, it intimates that there must have been an agreement in place, further confirmed by the fact that a last payment was made, in this case, October 2009. So for a SB defence, questioning whether or not an agreement exists is futile, it is already admitted.

 

At CAG, we are of the view that the last payment made to an account is the "cause" of any future action, if not remedied. The "action" taken, is the issuing of the Default Notice. Further action can then be taken if the default notice is not complied with, a court claim for example.

 

There are differing views on this topic, but this is not the place or the time for discussing them. We are here to help the OP with his SB defence, which has already been filed.

[Wandsworth2015]

Ok, thanks for clarification, by the very nature of an SB defence the agreement must exist....

[martin2006]

Yes thats correct, how could something be SB if theres no agreement in force for it to be SB against?

[Wandsworth2015]

Ok, I have removed a few lines and updated a few.... I'm not defending against Barclays, I'm defending against Hoist and its their DN date I'm using, I made this very clear that this was confusing for me to defend against in my very first post because of the lack of information from the claimant. I am making an assumption this is my credit agreement, I hope this makes more sense now.

 

 

WITNESS STATEMENT OF

I, the defendant in this claim, makes the following statement believing it to be true and state as follows:

 

1. It is admitted that I have held two credit card accounts with Barclays in the past, over 6 and a half years ago. One account was opened in approximately 2007 and the other approximately 2005, both were used to facilitate business transactions within a limited company I founded in 2002.

2. The limited company was placed into administration on 17th Sep 2009 and I resigned as a director on the same day. The administration company was Bond Partners LLP.

3. Oct 2009, Due to my financial circumstances, the administrators advised me to place personal debts into a debt management company.

4. Oct 2009, the last payment made to any Barclays account.

5. Nov 2009, Barclays were informed of my financial situation and my intentions were completed at the same time.

6. 29th February 2016, the Claimant's issued a claim, related to a Barclays agreement with account no. for £16,765.15.

7. March 2016, I requested a copy of the agreement, default notice and supporting documentation from the claimant solicitors, Howard Cohen and Co, pursuant to CPR 31.14, in order to defend the claim. I received no documentation.

8. June 2016, both Barclaycard accounts I held have not been used for at least 6 and a half years, and without supporting documentation I had no way of accurately defending this claim. I therefore contacted the Equifax credit reference agency to gain access to creditor information to support my defence.

9. June 2016, according to the Equifax credit reference agency, Hoist Portfolio Holding 2 LTD was registered against my name.

10. 23rd June 2016, Hoist Portfolio Holding 2 LTD confirms to Equifax stating, “the default information is correct and should remain unchanged”. The default information being, the default notice dated 29th July 2010, as per the particulars of the claim. See document 2.

11. 14th July 2016, Barclaycard confirmed to Equifax that the default notice date was incorrect and confirmed that the “BarclayCard default was over 6 years and the account has been deleted”, see document 3.

12. I am therefore making the assumption that the Hoist Portfolio Holding 2 LTD default noticed dated 29TH July 2010 is correct, the default has still been served several months after the initial breach and therefore, the cause of action has been delayed by 9 months and the limitations period extended to 6 years and 9 months.

13. Therefore, in the event the claim is valid, the Defendant contends that the Claimant's claim issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

14. The Claimant's claim to be entitled to payment of £16,765.15 or any other sum, or relief of any kind is denied

[martin2006]

Everywhere that i have looked so far, the information always states that the "Limitation clock" starts ticking from the last payment date, nowhere in any of the multitude of websites that i have searched, does it state that it starts from the DN date or the default.

 

The only exceptions to this is if a further payment is made towards the debt or it is acknowledged in writing.

 

A default will stay on your credit file for 6 years from the date of the default notice, but it will become statute barred, 6 years from the last payment, therefore, the DN has no relevance to statute barring

[Wandsworth2015]

The following is the original defence wording, there is a focus on the DN and therefore I wanted to get this right. I am defending this claim against Hoist and not Barclays, the DN date of Hoist is different to Barclays and therefore elements of this defence would need to be changed to the 29th July 2010 and 9 months and 6 years 9 months respectively.

 

hence my questions....

 

8. The Default Noticed was issued 24th May 2010 and served several months after the initial breach, thus the cause of action delayed by 7 months and the Limitations period prolonged to 6 years and 7 months which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run.

 

9. Therefore, the Defendant contends that the Claimant's claim issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

 

the elements that state "which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run." doesn't make sense to me if the defence is only from the cause of action, last missed payment.

[Andyorch]

"which in effect allows the creditor to stop time running and the creditor having effective control of when a limitation period begins or even starts to run."

 

Put simply...the LA Statute of limitations states a period of 6 years with no payment or acknowledgment.

In your claim the DN was issued several months later (after breach) therefore instead of your limitation starting to tick in say Oct/Nov 2009 its only started ticking from 29th July 2010 (actually 8 months after breach) therefore the creditor stopped time...elongated the period to 6 years 8 months and ineffect controlled when the limitation period started from..(29th July 2010 instead of Oct/Nov 2009)

 

The breach is the cause of action ....not the default notice

 

Makes sense to me:-)

[mercyblue]

LoP? Would I be right in assuming you mean the Law of Property act 1925?

[martin2006]

LoP? Would I be right in assuming you mean the Law of Property act 1925?

 

Think its a typo error, Limitations Act 1980

[catquest]

It starts from the last payment date if an account is already in arrears. If up to 9 October the account was fine then the cause of action ( leaving aside the DN problem for the moment ) was the first missed payment date, presumably some time in November. Also you acknowledged the debt in a letter ( 5th Nov ? ) when informing Barclays that you were using a Debt Management Company to clear your debt.

[Ford]

Think its a typo error, Limitations Act 1980

maybe not, and is the LoP act, which also refers to cause (as the 'right', being the breach re contract)?

(i know i said i wldnt post but..)

[mercyblue]

(i know i said i wldnt post but..)

 

I'm also guilty of that Ford

[Andyorch]

Think its a typo error, Limitations Act 1980

 

It was...amended to LA:oops:

[Wandsworth2015]

Here we go, final witness statement, it's pretty short and punchy and I feel I've chronologically progressed into the defence well and used the equifax stuff to support it.

 

This will require no supporting evidence on my part other than the witness statement, as it places the onus on Hoist to support their claim.

 

What are your thoughts?

 

 

1. It is admitted that I have held two credit card accounts with Barclays in the past, approximately 7 years ago. One account was opened in 2007 and the other 2005, both were used to facilitate business transactions within a limited company I founded in 2002.

2. The limited company was placed into administration Sep 2009 and I resigned as a director in the same period. The administration company was Bond Partners LLP.

3. Oct 2009, Due to my financial circumstances, the administrators advised me to place personal debts into a debt management company, this was the last period any payments were made to Barclays.

4. Nov 2009, Barclays were informed of my financial situation and my intentions completed.

6. 29th February 2016, the Claimant's issued a claim, related to a Barclays agreement with account no. for £16,765.15.

7. March 2016, I requested a copy of the agreement, default notice and supporting documentation from the claimant solicitors, Howard Cohen and Co, pursuant to CPR 31.14, in order to prove the validity and defend the claim. I have received no valid documentation to this date, 27th July 2016.

8. June 2016, I contacted the Equifax credit reference agency to substantiate and defend the claim. Hoist Portfolio Holding 2 LTD was registered against my name (due for deletion 1st Aug 2016), but the BarclayCard account had been deleted several months earlier, as the breach was well over 6 years old.

9. If the claimant is providing the correct information. The default has been served several months after the initial breach and therefore, the cause of action has been delayed by 9 months and the limitations period extended to 6 years and 9 months.

10. Therefore, in the event the claim is valid, the Defendant contends that the Claimant's claim issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any true cause of action for breach accrued for the benefit of the Claimant.

[Wandsworth2015]

Any evidence of the creditors reading CAG information?

[dx100uk]

cant hurt you even if they do.

 

 

never seen a claim 'lost' because the fleecers found out how you were going to defend.....

[Wandsworth2015]

Which is a damn good point....