HPH2/Cohen Claim Form - 2007 Morgan Stanley Barclaycard 'debt'

[SFK1981]

Thanks for that, dx.

That is all I received in the bundle from them.

That cover letter and the various bits and pieces.

There is no witness statement from them at all amongst the documents.

[dx100uk]

well barring the statements

if you look at other recent uploads on like HPH2/Hoist and even the PRA ones

you'll see exactly the same set of documents

[SFK1981]

Actually,

the T&C from Barclaycard that HC had given did have my name and old address on it at the top

- that was one of the documents I had edited before uploading to the site.

 

 

The application to Morgan Stanley was submitted some time in February 2007.

I'm not sure if that changes anything here

- their (HC's) cover letter seems to indicate that I should withdraw as they think they have enough evidence.

 

 

I'm not sure how to proceed with this now

- I still don't have a witness statement from HPH2/HC (which is against the directions of the court), so I have no idea how they intend to use these docs in the case against me.

 

Given I have to submit my defence by tomorrow,

is it worth pursuing with my witness statement I posted above,

perhaps noting the fact I haven't received the claimant's WS?

 

 

I know I may be asking a stupid question,

but I am really confused about which direction I should take now and I think I am feeling the pressure of the court's deadline to submit my defence by tomorrow. Being jetlagged doesn't help either!

 

Any advice at this stage would be most appreciated.

[dx100uk]

i'm sure andyorch will pop in later.

that link in post 15 is useful to read.

you've already filed a defence....

[AndyOrch]

You dont need to do anything by tomorrow...if the hearing date is 19th Dec...

 

7. Each party shall deliver to every other party and to the Court office, copies of all documents on which they intent to rely upon no later than 14 days before the hearing along with a signed statement of truth

[SFK1981]

Thanks again for all your help,

but I think I am going mad because I don't see that line in the directions I received from my court in the notice of allocation to the Small Claim track

- the directions from my court are as I wrote them out in post #17 (directions quoted again below):

 

Quote

District Judge XXXXXXXXX has considered the statements of case and questionnaires filed and allocated the claim to the small claims track.

The hearing of the claim will take place at XX:XX on the 19 December 2016 at the county court at XXXXXXXXXXXXXXXXXXXXXX and should take no longer than 2 hours.

A hearing fee of £XXX is payable by 27 October 2016 by the claimant unless you make an application for a fee concession. Failure to pay the fee will result in the hearing being removed from the list.

The court must be informed immediately if the case is settled by agreement before the hearing date.

The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case is settled or discontinued.

The parties are always encouraged to try and settle the case by negotiation. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The court must be informed immediately if the case is settled.

The following paragraphs set out the Judge's directions for preparation for the hearing. Failure to comply with the directions may result in the case having to be adjourned and the party at fault having to pay costs.

The following Directions apply to this Claim:

1) Each party must deliver to the other party and to the court office copies of all documents (including photos and correspondence) on which that party intends to rely at the hearing no later than 4pm on 27 October 2016 and the original documents must be brought to the hearing.

2) The original documents must be brought to the hearing.

3) The judge may refuse to consider a document or take it into account if a copy of it has not been sent to the other party as required by this Order.

4) The documents to be sent to the other party and the court must include the statements of all witnesses (including the parties themselves).

5) Witness statements must:

a) Start with the name of the case and the claim number;

b) State the full name and address of the witness;

c) Set out the witness's evidence clearly in numbered paragraphs on numbered pages;

d) End with this paragraph: 'I believe that the facts stated in this witness statement are true.' (or words to that effect); and

e) be signed by the witness and dated.

6) The judge may refuse to hear the evidence or consider any statement of any witness whose statement has not been prepared and copied to the other party and the court in accordance with the paragraphs above.

7) Neither party may rely at the hearing on any report from an expert unless permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

Given the above,

I took that to mean that I need to submit my WS by today (to both the court and HC)

- is that the case or am I being very silly here??

I did think it is a bit unusual to have such a long gap between the submission date and the hearing date, given what I have read on other threads here, but I guess each court does it differently....

[SFK1981]

Hi all,

 

Should I be submitting a WS today then or should I wait 2 weeks before the court date? I know this is a silly question but I am really confused on the timings - is a WS still necessary in this step as I still haven't received a WS from HC yet?

 

Thank you

Edited October 27, 2016 by SFK1981

[dx100uk]

Phone the court and check??

I think they've made a typo and its not due for weeks yet

[SFK1981]

Hi DX,

Just checked with the court. It seems that the deadline for submission is correct and that I need to submit my docs and WS by 4pm today.

They also confirmed that as yet, the claimant has not filed anything with the court.

In the absence of anything further in the next hour or so, I will go ahead and submit the WS I wrote up above

- it will be better than submitting nothing.

 

Thanks

[dx100uk]

good job

wel it ws an online application and I take it the details of mothers maiden nme etc were all there

I cant see any T&C's for a mprgan stanly card only a later BC card which doesn't sit right with me

even if your name is on the top line of the first sheet.

i'd have to find morgan Stanley T&C's on here to guess if what you have been sent is correct.

though obv I must admit the statements are pretty damning

but as you say they've not filed them so...........

there are various doc spread throughout this thread

though a few years earlier

but they don't look like what you have a nd I think they or yours should

HTH

http://www.consumeractiongroup.co.uk/forum/showthread.php?268157-Cabot-morgan-Claimform-Morgan-stanley-card-debt-**struck-out**

dx

[AndyOrch]

Thanks again for all your help, but I think I am going mad because I don't see that line in the directions I received from my court in the notice of allocation to the Small Claim track - the directions from my court are as I wrote them out in post #17 (directions quoted again below):

 

 

 

Given the above, I took that to mean that I need to submit my WS by today (to both the court and HC)- is that the case or am I being very silly here?? I did think it is a bit unusual to have such a long gap between the submission date and the hearing date, given what I have read on other threads here, but I guess each court does it differently....

 

But in your post #16 it states.......

 

7. Each party shall deliver to every other party and to the Court office, copies of all documents on which they intent to rely upon no later than 14 days before the hearing along with a signed statement of truth.

 

So which are the correct directions?

 

Andy

[SFK1981]

Hi Andy,

 

I believe that was from the letter I received from the court prior to the mediation. I did receive another letter after mediation which I typed out in post #17, which specified the deadline of today at 4pm. I called the court and checked and it is this deadline I have to stick to.

 

Thanks

 

SFK1981

[AndyOrch]

Hi Andy,

 

I believe that was from the letter I received from the court prior to the mediation. I did receive another letter after mediation which I typed out in post #17, which specified the deadline of today at 4pm. I called the court and checked and it is this deadline I have to stick to.

 

Thanks

 

SFK1981

 

Ah okay ..hence the confusion...give me a mo and I will look at your proposed WS.

[AndyOrch]

Witness statement will suffice SFK...go ahead and submit.

[SFK1981]

Thanks Andyorch - I did submit the WS as it was on time... Today, I have received the Claimant's witness statement, included with all the documents that I uploaded earlier. I have typed it out below:

 

I, XXXX XXXXXX, of Howard Cohen & Co of Suite 1b Joseph's Well, Hanover Walk, Leeds, LS3 1AB WILL SAY as follows:

 

1. I am a Litigation Assistant, of Messrs Howard Cohen & Co, and I am authorized by the Claimant to make this statement on its behalf. I make this statement in support of the Claimant's claim to recover monies owing to the Claimant by the Defendant pursuant to monies owing under a contract. Save where I indicate otherwise, the statements in this witness statement are form my own knowledge or matters of which I have been advised by the Claimant.

 

2. Upon the issuing of these proceedings, there was a balance of £13000 outstanding which includes interest at the rate of 8% from the date of Assignment to the date of these proceedings being issued.

 

Introduction

 

3. On xx February 2007 the Defendant entered into a Regulated Credit Agreement (the "Agreement") with Morgan Stanley for the provision of a Credit Card. There is now exhibited hereto marked "XXX1" a copy of said Agreement. (SFK1981 - this is the MS online application that I uploaded earlier)

 

4. Under the financial Terms and Conditions of the Agreement the Defendant was contractually obligated to make monthly repayments as they became due. There is now exhibited hereto marked "XXX2" a copy of the Terms and Conditions. (SFK1981 - this a copy of the Barclaycard T&Cs I uploaded earlier)

5. On 2 September 2011, pursuant to s.87(1) of the Consumer Credit Act 1974 (the "Act"), a Default Notice was served upon the Defendant requiring payment of the arrears to be made, the Defendant having failed to make payment in accordance with the terms of the Agreement. The Defendant failed to comply with the same and therefore the Agreement was terminated. There is now exhibited hereto marked "XXX3" a copy of the aforementioned Default Notice. (SFK1981 - this is a copy of the Mercers Default Notice - it is part of the document bundle I uploaded earlier)

Assignment

 

6. A chronology of assignment is detailed as follows Morgan Stanley assigned the account to Barclays Bank PLC

 

7. On XX December 2012 Barclaycard assigned its rights and duties of this account to MKDP LLP. Such Notice of the Assignment was served upon the Defendant on x January 2013. There is now exhibited hereto marked "XXX4" a copy of the aforementioned Notice of Assignment letter. (SFK1981 - this is a copy of a letter purportedly from Barclays transferring the debt to MKDP LLP - again part of the bundle I uploaded earlier)

 

8. On 1 July 2015 Hoist Finance Limited completed the acquisition of Compello Holdings Limited and its subsidiary undertakings Compello Operation Limited, MKE UK Limited and MKDP LLP.

 

9. On x October 2015, the Claimant served Notice of the Assignment upon the Defendant confirming that the Defendant's account has been assigned to them. The Claimant confirmed that it had appointed is (sic) Agent (Robinson Way Limited) to attempt to recover the outstanding monies due. There is now exhibited hereto marked "XXX5" a copy of the aforementioned Notice of Assignment letter (SFK1981 - this is the notice of assignment from HPH2 - part of the earlier uploaded bundle)

 

10. On X January 2016, a Letter before Action was issued by Howard Cohen & Co Solicitors and served upon the Defendant.

 

11. The Defendant failed to file a response to the Claimant's Letter before Action, therefore, this Claim was issued electronically in the Northampton County Bulk Centre pursuant to Part 5 and 7 of the Civil Procedure Rules in respect of electronic data issue on X March 2016 and was deemed served at the Defendant's usual residing address on 7 March 2016.

 

12. The Claimant's claim was issued in the sum of £13000 (rounded).

 

13. The Claimant sufficiently particularised the claim, having identified the source of the debt. The Claimant prior to the issue of these proceedings has made a number of requests for the debt due and owing to be satisfied.

 

Defence

 

14. The Defendant denies all knowledge of the debt.

 

15. The Defendant further alleges that the Claimant is not entitled to the relief claimed or any relief.

 

Reply to Defence

 

16. The Claimant notes the comments made by the Defendant and will respond below:-

 

17. The Claimant draws the Court attention to paragraphs 1-8 above for confirmation of the debt claimed in these proceedings.

 

18. The Claimant confirms that the Defendant was provided with all evidence of the claim on XX October 2016 (SFK1981- this was the bundle that was sent to me and I originally uploaded)

 

Conclusion

 

19. I therefore contend that the Defendant has no valid Defence to the Claim and respectfully submit that the Defendant is liable to Hoist Portfolio Holding 2 Limited for the following sums:- (SFK1981 - Sum total of £15000 (rouonded), includes the principal amount claimed, hearing fees and interest after issue) together with any other sum that the court deems just upon entering judgement.

 

Signed by the litigant from HC

 

The statement and exhibits also came with copies of the account statements from 2011/2 (again uploaded earlier). I'll be honest - I'm not all that impressed by that witness statement, but I'm still not sure how to play it here.

 

Why would they send a Barclaycard T&C for an MS account? Surely, if they want to enforce the agreement, they should have the original T&Cs from MS (especially as the account is pre-April 2007 (from reading about Carey/HSBC), or does that not apply since Barclaycard picked up the account? In addition, the letter of assignment from Barclays to MKDP LLC doesn't have any letterhead or anything which would identify it as a letter from Barclays. It looks like someone just typed it up in word and printed it out.

 

Any guidance you guys can offer on what to do next would be most gratefully appreciated. Would I be better off making some sort of offer of settlement or has that horse already bolted? Court hearing is not until 19th Dec, so I have some time (though not much) to read around, prepare and consider my options.

[dx100uk]

They will need the org t&cs

NOA doesn't have to come from the OC

[SFK1981]

Thanks DX - so they would need the T&Cs from MS in order to enforce the debt. i would assume that I should also see an assignment between MS and Barclays as well?

 

Another question - would I be able to submit a supplementary witness statement to address the claimant's points, given the court deadline for disclosure was a couple of weeks ago? Sorry for the inane question, but I have little understanding of the process...

[AndyOrch]

Just be careful here SFK as this is Fast Track and you will be liable for any costs if you lose.The fact that they have drafted a witness statement shows intent they will be seeing this through to the end.The fact that its an online post 2007 agreement make its very difficult to argue and I wouldn't rely on loop holes like T&Cs and missing NoAs.

 

It may be prudent to consider some kind of mutual settlement in view of the costs at risk.

 

Regards

 

Andy

[SFK1981]

I believe this has been allocated to the Small Claims track - does that make a difference in this case or am I completely misunderstanding things here?

[dx100uk]

yes post 16?

 

don't think the NOA issue will help you

however they certainly are NOT the original MS T&C's go look at that thread I point ed too earlier

[AndyOrch]

Right.......I recall now...so the claim was loaded with section 69 interest technically pushing it into Fast Track but the claim has been allocated to small claims...disregard my last post:wink:

[SFK1981]

Thanks DX/Andy - I had a look at the MS T&Cs that was in that thread and it doesn't look like the T&Cs I received from HC.

 

In order to insist on a copy of the T&Cs from MS, what's the best way to approach this?

 

Should I send a supplementary WS to the court to address this and the points raised in the claimant's WS or should I wait until the hearing itself and address this then?

 

That thread from DX makes note use of an N244 form to get the claimant to send original copies of the agreement

- is this an approach I should take here or is that not necessary?

 

Apologies for the questions (I'm confused about the way forward here) and appreciate the help.

[AndyOrch]

You can submit a further witness statement (supplemental) this should be submitted/served not less than 3 days before the hearing

[SFK1981]

Thanks Andy - I will draft one up over the next few days and post it up here.

[SFK1981]

Hi, I have had a go at drafting a SWS below - I borrowed heavily from isbo's thread (hope you don't mind, isbo!) and tinkered with it a bit.

 

IN THE county court ofxxxx CLAIM NO: xxxxx

 

BETWEEN:

HOIST PORTFOLIO HOLDING 2 LTD Claimant

 

-and-

 

MR xxxx Defendant

 

SUPPLEMENTARY WITNESS STATEMENT OF MRxxx of xxxxxxx ROAD, XXXXXX

 

I, Mr XXXX the Defendant in this claim make the following statement believing it to be true will state as follows:-

 

1. I challenge the Claimant's Exhibit (XXX1) (referred to as the 'Agreement') as it is clearly in breach of s.61 of the Consumer Credit Act 1974 thus - signing of the agreement, as it does not contain a signature for the debtor and creditor, nor does it contain the prescribed terms from Morgan Stanley. Therefore, it is improperly executed.

 

2. Section 65 of the Consumer Credit Act states that "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only." but the Court's discretion to determine the enforceability of pre-April 2007 agreements is removed by virtue of s.127(3).

 

3. It is denied that a default notice pursuant to s87 and s88 of the Consumer Credit Act 1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default as per the court's directions. A valid Default Notice is a strict requirement before enforcement action can be taken following a breach of a regulated agreement. Whilst the Claimant states that one was issued, and has disclosed a "reconstituted" version from their system, they have not evidenced that one was actually issued following the alleged default and thus complied with the terms of the Consumer Credit Act 1978. The Claimant is prevented from taking enforcement action until a valid Default Notice has been issued.

 

4. Until the claimant supports with evidence their claim that the Agreement meets the criteria necessary for the Court to have discretion with respect to its enforceability, their assertion of compliance with s.78 being sufficient grounds for enforceability should be denied. On the basis of the above, I request that the Court rejects the Claimant's claim.

 

6. As per CPR 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7. On the alternative, as the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

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

 

Signed

 

Would this be ok? Any ideas on what else I can add based on the Claimant's WS above and the bundle I uploaded?

 

Thanks for all the help again.