Hoist Claimform - old Vanquis Card debt

[kjw327]

Thanks Andy.  I'd value thoughts on the following:

 

I would like to focus on the following points, drawing these to the Judge's attention to try and  persuade decision in my favour:

 

1.The documents referred to in the POC should have been available to Claimant as they would need them to evidence their entitlement to bring the claim should they be required.  The claim was issues in Jan 22, the Claimant was not able to make any attempt at producing any of the documents until May 22.  Demonstrating the 'seeking a non-contested process and automatic judgement' tactic.  They clearly knew that they were not in possession of such documents.

 

2.The documents produced are questionable.  The reconstituted agreement does not comply with legislative requirements set in s78(1) of the CCA 1974, (case law precedence set in Carey v HSBC - can I refer to this?)  there is an absence of any information that makes this a copy of an agreement that could be connected to me (name, address etc..).  Therefore, they remain in breach of my CCA request by failing to comply with s78 and therefore s78(6) applies.

 

3.Further to the above, the validity of the non-compliant reconstituted agreement is further questioned with respect to if it is correctly executed.  My name is typed at the end, is devoid of the ticking of any acknowledging information that would demonstrate consent to the agreement, does not contain any IP address information to evidence that this was an agreement entered into online as alleged in para 26 of their WS1.  The OC ‘signature’ is entered and dated 21 months after I am alleged to have ‘signed’ the agreement.

 

4.Account numbers.  This debt is in relation to a credit card, which have 16 digit account numbers.  In all correspondence from the claimant there has been an account number which is 19 digits long, this is used for everything.  The only document that a 16 digit number is used is the DN, this contains only the 16 digit number and makes no reference to the 19 digit account number.  To all intents these could be 2 completely separate accounts.  The claimant submitted a late second WS attempting to clarify this, pointing out that the OC used an ‘internal reference number’ (the 19 digit one) and that the relationship is evidenced in an exhibit that they claim to be an extract of the ‘debt sale’.  This is at Post 46.  

 

5. The claimants WS and exhibit bundle contain the wrong Claim Number.

Can I raise the Carey v HSBC, if I did, should I take a copy of the judgement with me for reference?  Would this be foolish?  I am completely going down a rabbit hole if I do this?

 

I was thinking that if the judge didn’t have knowledge of this that it could be important to highlight that yes, a CCA can be reconstituted by a creditor, but that it must contain the correct information. 

[dx100uk]

1. no there is no requirement for the claimant to hold ANY documentation before issuing a speculative roboclaim via the automated service thru northants bulk whereby NO human see anything until the hearing you are about to attend.

 

2. i p'haps wouldn't use casey..no need. they are blank generic docs not those sent to YOU at the time of take out. casey is usually used by the claimant to firework look judge anything goes since 2006 - NOT TRUE!!

 

3, yes . there is zero proof other than your typed name you actually did this, no IP address no address, no tickbox, as is required following the changes to the consumer credit act in 2006 digital signature etc etc. their POC purposefully does NOT state takeout date, to avoid this shortfall that has LOST them 100's of claims to date (go read vanquis claimform threads) typically with lowells not hoist (but hoist are now part of the lowells group since your claim has been issued)

 

4.+ 5. IMHO immaterial. 

[Andyorch]

I will run through and respond to  your points tomorrow kjw327 

 

Andy

 

 

[Andyorch]

In response....

 

1. Disclosure only required if a claim is defended....default judgments do not involve disclosure. Disclosure of docs follows allocation once a claim has been defended.

 

2. Then challenge the recon if in your opinion it fails to comply as an exact copy of the executed version. Bear in mind that its perceived and allowed to have certain missing details but at the least should have your correct name and address at the time of inception and account number and terms and conditions from that time.

 

3. On line agreements will not normally contain IP address and tick boxes in signing and accepting the T&Cs conformation. However the following point you made is concerning where you state "  The OC ‘signature’ is entered and dated 21 months after I am alleged to have ‘signed’ the agreement." should be challenged and could invalidate the recon. Executed date should normally be the same date as the agreement or at the least a few days/hours later.

 

4. Account numbers are sometimes changed on assignment to comply with the assignees software accounting keeping. This is fine as long as you have been informed of the change and the change can be referenced back to the original account number with the original creditor.

It really is bad practice and cause all kind of problems in litigation as you state because the reference number will be different on agreement/default notices NOAs etc etc. But here is the important part as long as the particulars of claim refer to the original and new agreement number then that's accepted...if the POC does not refer to the original account number this can cause difficulties for the claimant.

 

5. This can be challenged a Witness statement is made under oath and signed same and must be accurate and true in all its content. Court may over look it as an error or regarded as de minimis but depending on the judge it could be construed as invalid and the statement rejected as credible proof as its inaccurate and a an error which a professional should not make. 

 

My last point re Carey ....Carey was the claimant in court claims and challenged the legality of various original agreements as not being properly executed and/or  missing the required legal prescribed terms which invalidated the agreements therefore rendering them unenforceable. From a defendant's perspective this can be very difficult  unless you have the original agreement and your claim does not rely on a reconstituted version of said agreement....therefore in your case I would steer clear of the name Carey but by all means the date you refer to on execution can be raised.

 

Andy.

 

 

..

 

[kjw327]

dx, Andy  - thank you to you both.  Very much appreciated. 

 

I will steer clear of Carey - completely understand.  

 

Just to comment further on the points above:

 

2. I'll be sure to draw specific attention to the lack of required information in the recon.  Am I right in my belief that this means the claimant still remains in breach of my s78 request?

 

3. I will definitely highlight the 21 months difference to the OC signature on the recon.  (It's the exact same cut and paste signature and date that I have seen on other threads from Lowell/Vanq).

 

4. There is only one account number on the POC, the 19 digit one.  All letters, including the NOA from both Vanq and Hosit only use this 19 digit account number.  The DN has a 16 digit one, no reference to the 19 digit.  No correspondence links the 2 numbers together in any way until the claimants WS2, which has that one line entry on an A4 piece of paper.  I literally could have just made up that in 2 minutes on a laptop. 

 

5. I'll try my best with challenging the WS validity and accuracy.  Worth a try.

 

Thanks so much again for taking the time to help me along the way.  You've helped me to feel confident in my position and I feel prepared to be able to do the best that I can.

Edited November 3, 2022 by kjw327

[Andyorch]

Whether they remain in default of the request may be questionable...they may not have satisfied your request....and a court will determine that point. With regards to your point 3 in hindsight a reconstituted version of an agreement shouldn't contain any signatures either yours or the claimants.....so in reality its shouldn't have an executed date either...perhaps that's been added to make it look authentic ?

[kjw327]

Thanks Andy - I’m here now, not long to wait!

[Andyorch]

Best of luck stand your ground.

 

 

 

.

[kjw327]

So it’s done, the claimant was awarded judgement and I lost. 
 

I have driven to get a coffee and left all of my notes in the car but I’ll have a go at providing as much information as I can.

 

Briefly though, the claimant brought up Carey v HSBC pretty much straight away, stating that this permits the use of the recon agreement.

 

I was able to articulate my points, counter some of the ones made and question the representative they sent.

 

In many ways I felt it was a good process, just not a great outcome for me.

 

Ultimately, the judge ruled that my defence was a ‘technical’ one and that the recon agreement provided was sufficient.  I obviously proposed otherwise, pointing out the missing information that would be needed but, after looking at s.78, the judge agreed with the claimants representative and that he would accept that it is valid for the purpose of the claim.

 

Judge informed that he was sufficiently persuaded in relation to the two account numbers and that they were connected to Vanq and that I had admitted in my defence that I had previously had financial dealing with Vanq.

 

 

[Andyorch]

Quote

the judge agreed with the claimants representative and that he would accept that it is valid for the purpose of the claim.

 

As previously said its all down to judge and his interpretation and mood to a certain point.....we cant win them all but we win most.

If you could provide as much detail of the hearing and findings as this will serve useful for other users.

 

Andy

[kjw327]

Update and question.

 

Having reflected upon the whole experience, I am still pleased that I was able to make a decent effort at defending the claim made against me despite the outcome.

 

In addition to the information that I posted shortly after coming out of court, I think the following could be helpful for others in the future:

 

• On entering the court and 'signing in' - I was advised by the Usher that the Claimant's representative was already present and they introduced us to each other.   I was asked to speak to him in a side room, during which he advised that I was under no obligation to speak to him but that he would like to review what he believed my defence was and that he was also authorised to make an effort to settle with me prior to the hearing commencing.  He further informed that he did not have a figure articulated to him, but that if I was willing to seek to reach a compromise then he could contact the Claimant to establish what may be possible.  I declined the offer to discuss any matters with him, although I lost, I took this as a sign that they were not 100% confident that they would win.

 

• I think one of the biggest factors that went against me was the fact that for a period of time in the past, I had paid regular payments before cancelling the agreement to pay.  The reality of this is that at the time of setting up the payments in 2018, I was really worried about litigation and the potential impact that this may have had on me, so I set up the payments.  Fast forward a couple of years and, following some changes and becoming enlightened here that it is best not to blindly make payments, I made the CCA request, which was defaulted, so I stopped the payments.  This ultimately led to the path that commenced the claim.  At the hearing the judge said that he interpreted my payments as my acceptance of the debt.

 

• The judge informed that he believed my defence was a technical one based upon the CCA1974 with a focus on the reconstituted agreement.  He was satisfied that although there were different account numbers, the fact that I had, as part of my defence, acknowledged a previous financial relationship with the OC, then he was unconcerned about this and as such felt that the POC were clear enough for him in relation to the account numbers and was persuaded that there was no confusion.  He said he was not troubled by this. 

 

• The reconstituted agreement did not contain some of the information required, but the judge accepted the claimants steer that section 1.2 of the document was sufficient in lieu of my details be included.  Section 1.2 stated:  "You", "yourself", "your" means the person signing this agreement and whose name and address is stated on the Reply Card or your application.  The judge advised that, after reviewing this and s78(6) that in his view the agreement was fit for purpose.

 

At the end, after the judge had concluded, the claimants representative asked the judge to award additional costs that were not included in the claim.  He said that these were in relation to his own attendance at the hearing and that he was asking these to be paid by me due to my defence being an unreasonable one and one that had no prospect to proceed, he then made effort to reference some things but the judge cut him off.  The judge advised that the threshold for this was very high and that he was not close to being satisfied and that my defence was reasonable and one which I was perfectly entitled and legitimate to make.

 

My worry right now is that I have yet to receive any communications from anyone since the hearing.  How am I supposed to proceed?  The judge made a reference to something being "14 days is the usual provision". Is this in relation to making payment?  I want to be able to get this closed now and cannot afford for a CCJ to appear on my credit record at this stage.  Does anyone have any advice on what I should do to move this forward?

 

 

 

 

[dx100uk]

well done on not falling for the std gumph from the rep upon arriving there - never speak to them.

 

well no ....your payments weren't acceptance, you didn't check anything to accept or not the debt, you just blindly thought you needed to pay it. had you not then, the claim could never had happened as the debt would most prob have been statute barred .

 

your last 2 points purely relate to the judge you had, we call it judge lottery, numerous other cases the same as your were thrown out or discontinued.

 

as for payment do you have the full sum?

if so contact the claimant /sols and pay it, the CCJ wont show, ensure they or you contact the court with proof of payment.

 

if you cant pay it all, the CCJ is there for 6yrs regardless, you'd better do an N245 for say <£20PCM to the court.

 

[kjw327]

Thanks DX.

 

Yes I can pay, I was under the impression that I would receive some correspondence detailing what actions I needed to take in relation to making arrangements to pay.

 

Feel foolish for waiting now, I will make some telephone calls tomorrow.

[Andyorch]

You will receive a Notice of Judgment with the confirmed  CCJ amount and payment details...14 days will be from the date of judgment and of course the date you actually receive this notice.

 

Your Particulars of claim as typed by yourself at the start of this topic makes no mention of section 69 Interest at 8%....if there was no claim for this interest or further costs added then you know the amount already being  £3550.00 as per the particulars of claim.

 

So you could make payment now without the Notice....but I would always wait until I seen it written and confirmed by the court.

 

 

 

 

[kjw327]

Thanks Andy.

 

The judge detailed the breakdown as the initial amount claimed, plus the court fee, the fixed commencement cost and the hearing fee. So I do have the total, I wrote them down as he read and he confirmed the amount due.   This is essentially the amount detailed in the claimants WS.

 

I was worried that the 14 days are due to expire on Friday, but if I have an additional 14 days from receiving the notice then this lessens my concerns.

[Andyorch]

Pay it then if you have the correct figure...Notice of Judgment could be delayed even if dated correctly.

[kjw327]

Looking for what I hope will be the final piece of advice in relation to resolving this.

 

I've had a bit of a mare with Hoist and HC.  Over the past 12 days, through one tactic or another, they have avoided providing payment details for me to make the payment. 

 

Initially, the bank details were provided over the phone and when I went to pay they were flagged by my own bank as of a concern within the verification process, so I halted the transaction.  Two things then came to mind, so I asked for an email to be provided confirming payment details but referencing the account being settled.  This would allow me to be able to make the payment, to their account as provided in written communications (avoids me making an error, which could have been possible in the first instance) and would also help me have an audit trail between the judgement and the payment.

 

I could then use this audit trail, provide to the court with the N443 - Application for a certificate of satisfaction/cancellation.  I thought that would be a legitimate process, protecting myself throughout.

 

Think again, my requests have been many over the 12 day period, each have failed to yield the information in an email, despite the promises.  I am now very quickly running out of time to meet the 30 day payment opportunity.

 

Hoist claim that they are sending these emails, but I am not getting them.  Funnily enough, they were able to successfully email to advise that they were in receipt of the judgement and asked me to pay by 4 Jan 23, and to do so I should call to make arrangements.  

 

Today, the best I could get was a text message with the bank details, balance and their reference number.

 

If I pay bank transfer this evening, print out confirmation, print out a screen shot of their message and a copy of the judgement, would this be sufficient to provide with the N443?

 

I think that they are being deliberately awkward and I am worried that my position is not helped by the fact that they have another historical debt of mine, which each time a call them, they try to talk to me about.

 

 

[dx100uk]

4 hours ago, kjw327 said:

Hoist claim that they are sending these emails, but I am not getting them.  Funnily enough, they were able to successfully email to advise that they were in receipt of the judgement and asked me to pay by 4 Jan 23, and to do so I should call to make arrangements.  

 

go onto your email providers webportal and log in.

make sure their emails are not going to your online spam folder.

 

dx

 

[kjw327]

Thanks DX, I’ve checked this way.  Definitely not in junk or spam.

[dx100uk]

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WWW.HOISTFINANCE.CO.UK

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use their ref number and pay it.

 

you don't need to contact the court or anything.

 

they should inform the court and the registration should be removed.

 

as long as you use their ref number in relation to the claim. 

thats all the proof you need.

 

dx

 

[dx100uk]

did this resolve?

 

dx

 

[kjw327]

I made the payment on 29 November via bank transfer.  They sent me a letter confirming my balance was zero and I have not had anything else since.  It hasn't come up on my credit file as a CCJ.