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The Other Snowdog

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Everything posted by The Other Snowdog

  1. The judge said the issue with the default notice 'was enough to strike out the claim on its own'. I pointed out the flaws in the recon, which were the incorrect address and also the incorrect creditor name and address (!). I The judge obviously took those flaws very seriously, and the claimant was unable to offer anything to counter. I think the statement of account issue was just the icing on the cake, but nevertheless it was a factor in the decision. The claimant asked for an adjournment to enable him to serve a default notice and to obtain statements to bolster the claim, but the judge (quite rightly) denied this on the grounds that HPH2 should have been better prepared to fight this hearing. In short, I think I have been gifted this dismissal due to the claimant's incompetence. I'm not sure if it would have gone this way if it hadn't been for the multiple failures on their part. I read somewhere a few days ago that 'the devil is in the detail' in these cases. I think my experience yesterday has shown that to be very true.
  2. Hello everyone. I had my hearing today and the claim was dismissed. The reasons for dismissal were: No evidence that a default notice had ever been served. A non-compliant reconstituted agreement No statement of account showing how the amount claimed had been arrived at I can't thank you enough for the help and guidance you have given me over the past few months. I will of course be making a donation to the site to help ensure you continue to offer guidance and assistance to others in the future. Thanks again!
  3. Thanks for your comments Andy. I've been reading a lot on this subject, as you can imagine, and there seems to be a bit of disagreement about unenforceability under s61. My understanding is that for an agreement to fail to comply with s61(1)(a) the defendant has to make a positive assertion about the original agreement, not the reconstituted agreement. The reasoning goes that a recon can be 'repaired' by correcting the missing or incorrect information, but judgement cannot be enforced whilst the claimant is in breach of s78, whereas the original agreement was what it was and cannot be 'repaired' if it is shown to have been flawed at the time it was signed. Since I am not in the position to make any positive assertions about the original agreement, I must rely on a breach of s78 to prevent a judge from enforcing the judgement. As I said earlier however, this may be merely delaying the inevitable. I will have a look at the cases you mention tomorrow, but in the meantime that seems to be what I have read, or am I missing something?
  4. Agreed, Andy, based on the docs they have submitted with their witness statement. Regarding 127(3), given the apparent flaws in the reconstituted agreement they are relying on in Court, how far can 127(3) reasonably take me? My defence is that there are flaws in the reconstituted agreement but how does 127(3) help me with that? I don't want to appear to be clutching at straws on the day, so I'm wondering if my best route would be to avoid the 127(3) argument and concentrate on highlighting the flaws in the agreement. The downside is that this may only result in a stay pending further information being produced by the claimant.
  5. It's the bit about failing to make repayments. I have acknowledged that I had a card but have no recollection of any outstanding amounts. It is there in the witness statement so I don't think I can just ignore it.
  6. Just putting the finishing touches to my notes for the hearing. I'm looking at the claimant's witness statement, and point 5 states, 'The Defendant had the benefit of credit facilities but failed to make contractual repayments'. How can I deal with this without it being deemed a bare denial?
  7. Andy, I've been looking for something to quote in court regarding this, but I haven't been very successful. Is there anything that definitively states that Carey only applies to agreements after 2007?
  8. I agree with you, Mercyblue, regarding the route to take in defence, but there is a further statement at Carey 61, which goes on to say “Having decided that question, there is the consequential question of how the creditor is to provide the original name and address. Consistent with my finding on Issue 1 (a) I take the view that it is open to the creditor to provide the name and address within the reconstituted copy from whatever source it has of those details. It does not have to take them from the executed agreement itself, which is what Mr Uff and Mrs Thompson contend. The difference between the parties here is graphically illustrated by what has happened in Carey. Initially the creditor reconstructed the executed agreement - as shown at pages 197-201 - but without the name and address filled in. Then this was added to the reconstruction from HSBC's records.” So it would appear that an amended recon agreement would be permitted. I agree this seems contra to what is stated about a true and accurate copy but sadly there it is.
  9. Would I be able to go as far as to say that I could not have signed such an agreement? Would it not be sufficient to challenge the accuracy of the recon agreement because of the missing required details?
  10. Yes Mercyblue, that's correct. They got my name right on the covering letter and in correspondence but it doesn't appear anywhere on the recon agreement. DX raised an eyebrow about my name being omitted from the agreement also, but it wasn't until I read the full transcript of the Carey case that I understood what he was getting at. However, if you are correct when you say that the claimant will only be able to submit a purportedly true and accurate recon agreement once, then it does perhaps offer a glimmer of hope.
  11. Regarding the issue of recon agreements, how can the claimant prove that the recon is true and accurate without an original to compare it to? Will the judge simply take their word for it? The only thing I can see wrong with the recon agreement is that it does not contain my name and address at the time the agreement was executed. But even if the case was stayed on that basis, which I very much doubt, the claimant would simply go away, add my name and address and start the process again. From what I have been reading, it seems that a s.78 defence is not in itself sufficient to prevent the claimant from obtaining a judgement. Going down the s.60/61 route is also a non starter because I have no way of proving that the recon is either inaccurate or not a true copy. Any thoughts at this stage would be appreciated. I think it is starting to look bleak.
  12. So will that be accepted by the judge Old Cogger? Also, is it the case that the defendant has to make a positive assertion that the original agreement was unenforceable because of whatever reason? For example, incorrect interest rate, or the copy presented is illegible?
  13. So if that is the case, and Carey v HSBC doesn't apply, then the claimant must need to produce an original signed agreement, and even if Carey v HSBC did apply they would still need to produce a reconstituted agreement with my name and address on it? Either way it would seem they are falling short of what is required to be able to obtain a judgement. Would you agree, or is it not that simple?
  14. Apologies everyone. I have a basic understanding of Carey v HSBC. It is on my to-do list to study this case a bit more in depth. From what I can ascertain, whilst the case allows a reconstituted s.78 agreement, it must contain the name and address of the debtor as it was at the date of execution, but even without such an agreement the contractual liability of the debtor remains. What that last part means in practice however I am unclear about. If the judge rules in my favour and strikes out the claim, surely that is game over for the claimant? Alternatively if the claim is stayed then any future claimant would still be required to produce a compliant s.78 agreement? A caveat to all of the above seems to be that Carey v HSBC only applies to agreements signed after 2007. According to the claimant this alleged debt dates back to 2001.
  15. It's very soon Shamrocker. I'd prefer not to say the exact date just in case our friends are looking in.
  16. Hello again everyone. Further to the docs I have posted, d oes anyone have any further comments or insight to offer? DX thanks for your comments, and yes, I agree that what they have produced seems to amount to not very much at all. The court date is drawing ever closer, so I would appreciate any advice at this stage. I've really no idea what to expect on the day. For example, how do I address the judge? Is it Your Honour? Also. I have asked this in a previous post, but at what point, assuming it goes against me, is agreement reached regarding payment terms? I think if I had a good understanding of the process I would feel happier about everything. Sorry for all the questions, but as the date approaches I'm feeling more nervous.
  17. Shamrocker, here is a copy of the court letter. The deadline for submission of witness statements was last week. notice of allocation.pdf
  18. Hello. Sorry for the delay. Hopefully there should be a PDF with all the documents attached. Can you let me know if you can't see it? exhibits.pdf
  19. Further to the witness statement received a few days ago, I have now received a court date. It would seem that they are intending to take this all the way. Presumably they must be fairly confident of getting a favourable judgement or they wouldn't have taken it this far. Looking ahead to the worst case where judgement goes against me, at what point do I agree payment terms? I have quite a severe disability and am on benefits. I also have two dependant children. I am therefore of limited means, to say the least. Will payments be agreed on the day in court, or afterwards? Does anyone have a gut feeling about how this will go, based on previous experience? I'm going ahead come what may as I still feel they have little in terms of real evidence, but it would be interesting to hear the views of those of you who have seen this all before. Regardless of the outcome I would like to sincerely thank everyone who has contributed to this thread. You have guided me every step of the way and I am grateful for the support you have given throughout this time. I will of course be making a donation to the site to say thank you for all your help.
  20. Shamrocker, here is the WS from the Claimant. I don't have access to scanning facilities so I have retyped it minus sensitive info. On xxxxxxx the defendant entered into a regulate credit agreement (the "Agreement") with Barclays Bank plc T/A Barclaycard for the provision of a Barclaycard credit card, account n umber xxxxxxxxxxxxxx. There is now exhibited hereto marked xxxxxx a reconstituted copy of the credit agreement In the matter of Carey v HSB, "a creditor can satisfy its duty under s78 of the Consumer Credit Act 1974 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself." The agreement is therefore rendered enforceable and the amount due under the same is fully recoverable. Under the financial terms and conditions of the contract, the defendant was contractually obliged to make payments as they become due in relation to interest and charges caused by use of the overdraft facility. There are now exhibits marked xxxxx a copy of the terms and conditions provided by the claimant's predecessor in title. The defendant has had the benefit of the credit facilities available but failed to maintain contractual repayments. The Claimant has been informed that a default notice was served upon the defendant pursuant to s87(1) of the Act. The Defendant failed to comply with the same and the contract was terminated. On 18th April 2013, Barclaycard assigned the rights and duties of the Defendant's account to MKDP LLP. Such notice was served upon the defendant on 21 May 2013. There is now exhibited hereto marked xxxxxxx a copy of the said letter. On 21 September 2015 MKDP LLP assigned the rights and duties of the defendant's account to Hoist Portfolio Holdings 2 Ltd. Such notice was served upon the defendant on 01 October 2015. There is now exhibited hereto marked xxxxxxxxx a copy of the said letter. On 01 October 2015, the Claimant also served such notice of the said agreement upon the defendant to inform the defendant that Robinson Way Collection Agents will be dealing with the account on the behalf of Hoist Portfolio Holdings 2 Ltd. There is now exhibited hereto marked xxxxx a copy of the said communication. On 03 January 2016, a letter before action was instructed by Howard Cohen and Co and was served upon the defendant. The defendant failed to file a response to the Claimant's letter before action, therefore, this claim was issued electronically in the Northampton County Court Bulk Centre ("CCBC") pursuant to part 7 of the Civil Procedure Rules in respect of electronic date issue on 01 March 2016. The Claim was issued electronically in CCBC and therefore the claimant was restricted by the number of characters allowed for electronic issue. However, the Claimant contends that the claim was sufficiently pleaded for the Defence to respond as he felt appropriate. The Claimant notes the content of the Defendant's allegations in his Defence particularly that he does not recognise having a Barclays account and denies receiving other documents. However I respectfully draw the Court's attention to the above mentioned paragraphs and exhibits xxxx to xxxxx which provide details and evidence of the Defendant's contractual liability in this matter. The Claimant the Defence is merely a bare denial and respectfully seeks an Order that the defence be struck out pursuant to CPR3.4(2)a and judgement be entered in favour of the Claimant for the sums claimed of £xxxxxxx plus interest at 8% and fixed commencement costs along with any other sum that the Court deems just. I believe the contents of this statement are true. Signed and Dated
  21. Hello everyone. Yesterday I received a copy of their witness statement and supporting documentation. They have produced what they call a reconstituted agreement and a copy of Ts and Cs. The 'agreement' is just a photocopy of the 'Credit Agreement regulated by the Consumer Credit Act 1974. No signatures, no information relating to me at all. They are referring to Carey v HSBC in their witness statement, arguing that the agreement is enforceable because of this ruling. They have also produced copies of Notices of Assignment that I know I have never received. Is this something I should challenge? In short, they haven't provided anything with a signature on, and have not provided any proof of posting for the letters they claim to have sent and are producing as evidence. So based on what they are going to court with, and bearing in mind the Carey v HSBC case, is there anything else I can do to bolster my defence, or do I have no choice but to go with what I have and hope the judge rules in my favour?
  22. Thank you for the reply Andy. I agree with your comments; my defence relies entirely on their inability to produce the required documentation. All I can do is to proceed on that basis and see where it goes from here.
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