HPH2/Cohen Claimform - No proof of debt ownership,

[Turning Worm]

I've trawled through the threads and got some information, but I could do with something more specific now.

 

The story is fairly long,

but perhaps if I ask the questions in the right order,

then depending on the answers,

much of it might become irrelevant.

 

I got a claim form from Howard Cohen Solicitors, acting on behalf of Hoist Portfolio 2 Holdings Ltd.

(I gather both are well known to caggers) for a dubious old bank debt, much of which is fees and statuary interest.

They claim to have had the debt legally assigned but have not furnished proof.

 

As a second point,

I have mental and physical disabilities (I won't detail here) and have written to the court for an extension of time.

 

They have effectively granted me another 7 days to file a full defence (ie 13th March) and this is now triggering anxiety responses.

 

Quick question: can I do anything straightforward in that time?

(if not, I'll go into more detail)

[Andyorch]

What date is this claim form Turning Worm ?

 

Andy

[BankFodder]

Yes, please answer the question asked above about the date you received it.

 

Also, please can you post the claim form up in PDF format. I suggest that you write a letter immediately to the claimant and also copy to their solicitors – send them recorded delivery – asking for a copy of the assignment.

 

Do that tomorrow. It's very urgent. Have a look at this link - http://www.consumeractiongroup.co.uk/forum/showthread.php?475180-Victory-over-Lowell-in-court-today

which is extremely relevant to you

[Turning Worm]

Thanks for the link.

 

The issue date was 19 September 2016 and this is where it gets messy.

 

Its taken me over 10 attempts to sit and write a reply. Can I PM you.

[dx100uk]

hi ya

scanning up a PDF is difficult at the best of times

 

 

can you fill this link in for us?

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016**

 

 

copy and paste it back here

and enter your answers.

 

 

dx

[Turning Worm]

I'm sorry,

its easy to misinterpret raw text as sarcasm in my dizzy frame of mind

(this debt has been only a tiny part of of a much more overwhelming problem).

 

 

I agree, scanning isn't straightforward.

claimform xxx.pdf

[dx100uk]

can you fill the link out too please??

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2016

[Andyorch]

So if you could fill in the gaps ...what has happened since you submitted a defence last year and why have you been advised to submit a full particularised defence by the 13th March ?

 

Have you filed a DQ (Directions questionnaire N180) and now the claim is proceeding ?

 

If so have you received a Notice of Allocation ?

 

Do you mean a defence or witness statement..as I assume you would have already submitted a defence last October ?

 

Regards

 

Andy

[Turning Worm]

Name of the Claimant ? Hoist Portfolio Holdings 2 Ltd.

 

Date of issue – 19 September 2016

 

What is the claim for –

 

1.This Claim is for the sum of £663.11 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXXXX. The debt was legally assigned by MKDP LLP (Ex HSBC) to the Claimant and notice has been served.

2.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

The Claimant claims

 

The sum of £663.11

Interest pursuant to s69 of the County Court Act 1984 at a rate of 8.00percent from the 7/04/11 to the date hereof 1986 is the sum of £288.57

Future interest accruing at the daily rate of £ .15

Costs

What is the value of the claim? 1081.68

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Current account

When did you enter into the original agreement before or after 2007? Account opened 26th September 2006

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim.

Debt purchaser (claims this has been assigned)

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? I don't think so.

 

Did you receive a Default Notice from the original creditor? I don't know

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? I don't know

Why did you cease payments? Serious illness.

What was the date of your last payment? 20th September 2010

 

Was there a dispute with the original creditor that remains unresolved? This has not started yet.

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? No

[Turning Worm]

So if you could fill in the gaps ...what has happened since you submitted a defence last year and why have you been advised to submit a full particularised defence by the 13th March ?

 

Have you filed a DQ (Directions questionnaire N180) and now the claim is proceeding ?

 

If so have you received a Notice of Allocation ?

 

Do you mean a defence or witness statement..as I assume you would have already submitted a defence last October ?

 

Regards

 

Andy

 

Thanks,

 

OK, according to my original question: I'll go into a little more detail with the recent timeline.

 

2016-09-19 Claim by Hoist Portfolio Holdings 2 Ltd. (HPH2L) Via Howard Cohen Solicitors Ltd. (HCL)

 

2016-10-25 As I was experiencing a crisis at the time, then an emergency note had to be put in the defence section stating that I had a medical history: clearly this was not intended as a defence. The procedure seemingly has no provision for handling emergencies so the note was automatically accepted as a "defence", and forwarded to the solicitor as such.

 

2016-11-04 The solicitor then wanted copies of medical reports "referred to in your Defence form."

 

2016-11-23 Notice of proposed allocation to the small claims track.

 

2016-12-12 Defendant's N180 and attachment (retuned by me) – rejecting mediation as inappropriate, and noted that medical reports were private and confidential and for the court only. Included was an attachment which stated: the crisis note was NOT intended as a defence. That ongoing mental health problems were causing delays but were not being handled correctly, but instead symptoms were being exacerbated by deadlines.

 

2016-11-27 Claimant's N180 (asking for mediation)

 

2016-12-16 Notice of Transfer of Proceedings. To local court stating that a defence had been filed.

 

2017-01-21 General Form of Judgment or Order:

IT IS ORDERED THAT: 1. The claim be struck out. 2. Unless... makes an application to extended the time for filing a full defence, with reasons, ...

 

2017-02-08 Application to extend time. Long detailed reasons for need of extension; explanation of the symptoms and difficulties caused and their effects; that I dispute the underlying debt; and a reaffirmation of vulnerability and elevated risk (and note need for, but inaccessibility of, proper assessment).

 

2017-02-27 General Form of Judgment or Order

IT IS ORDERED THAT: The time for filing a full defence be extended to 13th March 2017. With no further justification for this date or any reference to my application details.

 

I'm painfully aware of my slowness, and of looming deadlines. This order effectively gave me 7 workdays (mostly to find the head-space) to quickly research whether a Deed of Assignment or notice of assignment was sufficient and necessary proof, and to get copies thereof as suggested; or depending on that, whether I would have to demonstrate the fundamental problem with the original overdraft (not quite as easy).

 

I have letters from various DCAs including assignment between HSBC and MKDP LLP; I have requested copies of such notice from both the Claimant and their representative as I do not have assignment from MKDP LLP to HPH2L.

 

Hope this makes sense. tw,

[dx100uk]

ring to really all you need is out overdraft holding defence filed by 4pm toroow evening.

is MCOL still available to you

can you still log in?

[Turning Worm]

MCOL has never allowed me to log-in (just tried again; still doesn't)

 

Can you elaborate on the first line of what you said, not sure what you meant.

[dx100uk]

dunno looks like me keyboard battery might be low

needs some sunlight but in Scotland that's rare this time of year...

 

really all you need is our std overdraft holding defence filed to your local court tomorrow

 

should be easy

can you get there ok?

[Turning Worm]

Right, got what you meant now (and sense a patent for hydro-electric keyboards in Scotland )

 

Nice one! Yes, I can make it to the county court tomorrow. I'll have a search on what a standard overdraft holding defence, and what I need to do. I will search for dodgy bank overdraft practices to vulnerable people (I think the CAG newsletter might have noted it?).

 

If you have any links to hand, then that would be great. I'll forward useful stuff I find.

tw,

[dx100uk]

easiest way is to use our top search CAG box of the red toolbar.

 

 

https://cse.google.co.uk/cse?cx=partner-pub-0964707606882478:652l7hswbgv&ie=UTF-8&q=The+Defendant+has+failed+to+repay+overdrawn+sums+owing+under+the+terms+and+conditions+of+the+bank+account.&sa=Search+CAG#gsc.tab=0&gsc.q=The%20Defendant%20has%20failed%20to%20repay%20overdrawn%20sums%20owing%20under%20the%20terms%20and%20conditions%20of%20the%20bank%20account.&gsc.page=1

[Turning Worm]

Reading your suggested search results, the experiences of others sound eerily familiar.

 

I'm taking a particular thread as a template, as it is quite close, but I've changed the details.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?471103-Hoist-Cohen-claim-form-ex-HSBC-OD-debt

 

 

1. This Claim is forthe sum of £663.11 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXXXX.
   
2. The debt was legally assigned by MKDP LLP (Ex HSBC) to the Claimant and notice has been served.
   
3. The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account. The Claimant claims
   

1. 
   


1. The sum of £663.11
   
2. Interest pursuant to s69 of the County Court Act 1984 at a rate of 8.00percent from the 7/04/11 to the date hereof 1986 is the sum of £288.57
   
3. Future interest accruing at the daily rate of £ .15
   
4. Costs
   

 

 

 

 

Defence

 

The Defendant contends that the particulars of the claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor HSBC. It is denied that I am indebted for the alleged balance claimed. Any amount claimed is far in excess of any agreed overdraft limit with HSBC. Any alleged balance claimed is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

 

2.Paragraph 2 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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 and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

3. Paragraph 3 is denied. I have never been contacted or requested by HSBC or the Claimant to pay any alleged overdrawn sums.

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

(d) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 6th March 2017 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim. The Claimant has failed to respond or comply with this request.

 

6.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.

 

 

Would something like this be suitable, and can I take a printed copy to court with me tomorrow to submit?

tw,

 

[dx100uk]

your no 3 re their no 3

they.ve not asked for repayment before..

read the rest of that other thread

[Turning Worm]

your no 3 re their no 3

they.ve not asked for repayment before..

read the rest of that other thread

 

thanks for correction, maybe this is in the right ball park at least

 

perhaps it should read

 

3. Paragraph 3 is denied. I have never been contacted or requested by the Claimant to pay any alleged overdrawn sums.

 

 

I suggest that you write a letter immediately to the claimant and also copy to their solicitors – send them recorded delivery – asking for a copy of the assignment.

 

I did so, but not under the auspices of any CPR, so maybe.

 

5. I requested documentation request dated 6th March 2017, for a copy of the notice of assignment, The Claimant has failed to respond or comply with this request.

 

I also dispute the authority of the sum itself as it was an unauthorised overdraft; there was no agreement or facility to make such a payment and at a time when I was not compus mentus and in need of mental supervision.

[Turning Worm]

Searching through hard drives etc. and have uncovered more documentation

 

To revise your questionnaire:

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Yes

 

9th March 2012: I explained the nature of my illness and requested an annulment of any debt that they thought that I might owe. I did not acknowledge any debt.

 

They are attempting to backdate statuary interest from 7th April 2011.

This date is not explained.

 

 

However, I have the last direct communication from HSBC (OC) dated 15th March 2011 closing the account, but my last payment is 20th September 2010.

Is there any grounds for considering a statuary barred defence?

 

Neither the claimant nor the solicitor have produced any notice of assignment upto today's post.

tw,

 

[dx100uk]

claimform was issued 19th sept 2016

 

 

the issuance of a claimform halts the clock sadly

[Turning Worm]

Right, so that would be taking the 15th March 2011 closing the account date.

 

OK, back to plan A with the amendments; get it in before 4pm, and wait.

I'll give you the update (or more questions) depending on how that goes.

 

Thanks again dx

tw,

[dx100uk]

needs to be sorted by 4pm and sent by the email AD below ideally

 

p'haps andyorch will pop in and just run over it for you see if its correct

 

get it ready now

 

 

MCOL is only one way of responding to a claim.

.

If you are having problems logging in, or would prefer not to use MCOL,

you can fax, email or post your response to the Court instead.

If you send your response by e mail

please send it to MCOL@hmcts.gsi.gov.uk and ensure you quote “Claim response” and quote the claim number in the subject field.

.

[Turning Worm]

Great stuff; I'm taking it in personally but I will take out the special html stuff.

 

 

1. This Claim is forthe sum of £663.11 in respect of monies owing pursuant to an overdraft facility under bank account no. XXXXXX.
   
2. The debt was legally assigned by MKDP LLP (Ex HSBC) to the Claimant and notice has been served.
   
3. The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account. The Claimant claims
   

 

1. The sum of £663.11
   
2. Interest pursuant to s69 of the County Court Act 1984 at a rate of 8.00percent from the 7/04/11 to the date hereof 1986 is the sum of £288.57
   
3. Future interest accruing at the daily rate of £ .15
   
4. Costs
   

 

 

 

Defence

 

The Defendant contends that the particulars of the claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor HSBC.It is denied that I ever had an authorised overdraft facility. It is therefore denied that I am indebted for the alleged balance claimed. Any alleged balance claimed is a result of unfair and extortionate bank charges/penalties being applied to the account.

 

2.Paragraph 2 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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 and Section 82A of theconsumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

3. Paragraph 3 is denied. I have never been contacted or requested by the Claimant to pay any alleged overdrawn sums.

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

(d) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 6th March 2017 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim. The Claimant has failed to respond or comply with this request.

 

6.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.

 

 

Another quick question, if I did submit by post, would it miss today's deadline, or would it be taken at time of posting?

[Andyorch]

I prefer the defence in post#16.......

 

Did you actually have an authorised overdraft?

[Turning Worm]

Thanks; The difference are paragraphs 1 and 5 I see.

Paragraph 1 could revert to the original in #16

 

No, I did not have an authorised overdraft and only went into the red after an assault that triggered off my symptoms.