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    • AndyOrch
      Backdoor Link CCJ - old Barclaycard debt - Default Judgment set a side - hearing in 2 days - Witness Statement help urgent!

      By AndyOrch · Posted

      Few tweaks as the run order was completely messed up and the main point of your defence (reconstituted agreement) pushed to the bottom of the statement.   I, XXXXXX, being the Defendant in this case will state as follows; I make this Witness Statement in support of my defence in this claim and further to my set aside application dated 1 November 2022. 1.The claimants witness statement confirms that it mostly relies on hearsay evidence as confirmed by the drafts in person in the opening paragraph. It is my understanding they must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. 2.  I understand that the claimant is an Assignee, a buyer of defunct or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already wrote off as a capital loss and claimed against taxable income as confirmed in the claimants witness statement exhibit by way of the Deed of Assignment. 3. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights.  This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information).  The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party. 4.  I became aware of original Judgement following a routine credit check on or around 14th September 2020. 5. The alleged letter of claim dated 7 January 2020 was served to a previous address which I moved out of in 2018, no effort was made to ascertain my correct address.  I have attached a copy of my tenancy agreement which is marked ‘Appendix 1’ and shows I was residing at a difference address as of 11 December 2018 and was therefore not at the service address at the time the proceedings were served.  I have also attached an email from my solicitors to the Claimants solicitors dated 14 July 2022 which was sent to them requesting that they disclose the trace of evidence they utilised prior to issuing the proceedings against me.  This is marked ‘Appendix 2’. The claimants solicitors did not provide me with these documents. 6. Under The Pre-Action Protocol for Debt Claims 2017 a Debt Buyer must undertake all reasonable enquiries to ensure the correct address of a debtor, this can be as simple as a credit file search. The Claimant failed to carry out such basic checks. Subsequently all letters prior to and including ,The Pre action Protocol letter of claim dated 7 January 2020 and the claim form dated 14th February 2020 were all served to a previous address which I moved out of in 2018. 7. Upon the discovery of the Judgement debt, I made immediate contact with the Court and the Claimant Solicitors, putting them on notice that I was making investigations in relation to the Judgement debt as it was not familiar to me.  I asked them to provide me with a copy of the original loan agreement but this was not provided to me.   The correspondence to the Claimant Solicitor's is attached and marked ‘Appendix 3’ 8. On (insert date) I successfully made application to set a side the judgment. The claim proceeded to allocation, 9. The claimant failed to comply with the additional directions ordered by District Judge Davis on the 2 February 2024 'The Claim shall be automatically struck out at 4pm on 3 April 2024 unless the Claimant delivers to the Court and to the Defendant the following documents.' None of these documents were received by the court nor the defendant by that date. (insert date you did receive the documents) I then sent a Data Subject Access Request to Barclays but no agreement was provided. Details the timeline of communication between myself and Barclays are attached and marked ‘Appendix 4’and the copies of correspondence between myself and Barclays are attached and marked ‘Appendix 5’. Remove irrelevant 10.The claimant relies upon and has exhibited a reconstituted version of the alleged agreement. It is again denied that I have ever entered into an agreement with Barclaycard on or around 2000.  It is admitted that I did hold other credit agreements with other creditors and as such should this be a debt that was assigned to Barclaycard from another brand therefore the reconstituted agreement disclosed is invalid being pre April 2007 and not legally enforceable pursuant to HHJ Judge Waksman in Carey v HSBC 2009 EWHC3417.  Details of this are attached and marked ‘Appendix 6’. The original credit agreement must be provided along with any reconstituted version on a modified credit agreement and must contain the names and address of debtor and creditor, agreement number and cancelation clause. 11. Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim relies upon and not mislead the court. 12. It is denied I have ever received a default Notice pursuant to sec 87(1) CCA1974.The claimant is put to strict proof to evidence from the original creditors internal document software the trigger of said notice.  13.   As per CPR 1.4(2)(a) the court encourages parties to cooperate with each other in the conduct of proceedings in order to try and save time and costs for the parties and to also save the time and resources of the court however, despite vast attempts at mediation the claimants have been most unreasonable and have remained unwilling to mediate. 14. Until such time the claimant can comply and disclose a true executed copy of the original assigned agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974. I believe that the facts stated in this Witness Statement are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Signed                 ………………………………………………….. Name                  XXXX Date                     30 April 2024   Run 3 copies Court /Claimants Sol/File
    • Alfy
      Iva with Hanover now been passed to credit expert

      By Alfy · Posted

      As one of you mentioned above I've been in a mess for nearly 20 years now and I'm ready to sort my credit report out now - the main reason I got into second round of debt is my kids being unwell and the state considering them not unwell enough for extra help so despite my son being in hospital for 3 months in one year we got extra zero help and I eventually lost my job and got into debt to just so I can be تا my sons hospital bed at his time of need - my life basically fell apart and all these debts got me again 

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      We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

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      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Parcel delivery insurance is prohibited under section 57 – Consumer Rights Act – Read about It Here and in The Times.

Unfair Dismissal - ** RESCINDED **

Conor2
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Conor2

Conor2

Posted
Posted

I believe my employer has unfairly dismissed me.

 

The events: A work mate at the time took two drinks from the shelf at work, then went to the back of the store were no cameras could see. I then went out the back and chatted with him, he drank both of the drinks then put them in the bin, the security guard then came down seen the two empty drinks in the bin. We were both then called up stairs to have separate meetings about the incident, during this I told them that I didnt see the work mate drink them and said they were just placed on the side then we left. Following these meetings we were both suspended so the case could be investigated. While we were suspended he handed in his resignation before the disciplinary hearing, I attended my hearing told them that he had drank both of them. However I was believed to have been guilty as I changed my story and they fired me on the grounds that they believe that I consumed one of the drinks.

 

Since this conclusion I have expressed that I wish to appeal the decision and will bring a letter to them tomorrow stating this. I have also got a signed statement from the work mate that drank the two drinks saying he did so to take as evidence of my innocence.

 

Just writing to ask is there any advice on my situation anyone can give, I've went to the citizens advice bureau and they said to first give them my appeal letter then get in touch with the employment tribunal.

 

Thanks for your time

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Sidewinder

Sidewinder

Posted
Posted

On precisely what grounds have you been dismissed? Theft?

 

Whilst you may well have grounds to appeal (and indeed should) against any charge of the theft itself, your employer may still have grounds to dismiss you fairly for acting as an accomplice/being complicit in an act of dishonesty/breach of trust. This would be on the grounds that you were aware that a colleague had stolen items and did nothing about it, or, that you lied when asked about the theft. On that basis, it may be that the employer could hear your appeal but still choose to dismiss, but equally, a well worded appeal might also persuade the employer to downgrade the dismissal to a warning.

 

I am wondering why the CAB would advise you to go to an Employment Tribunal. If, as you say above, you were untruthful when asked about the drinks, then a Tribunal case will be a non-starter. This is not a matter which requires proof beyond reasonable doubt, merely that the employer is required to have a belief on the available evidence that you were involved in an act of dishonesty. A Tribunal will not assess whether the employer was correct in their assumption, merely whether their actions in dismissing you were a reasonable response to the matter in question. Sadly, I fear that not disclosing information during an investigation into a theft will be seen as covering up for the thief, and that dismissal would be a reasonable response on the part of the employer.

 

Sorry - I am certainly not making you out to be as guilty as your former colleague, but believe that in the way you have worded your post, the employer has got you either way. You must appeal because you are not guilty of the theft, but in that appeal you will have to have a pretty convincing explanation for why you did not speak out at an early stage if you knew that your workmate had stolen drinks, and why you acted in such a way as to cover for his dishonesty. Misguided loyalty would seem to have cost you dearly.

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stu007

stu007

Posted
Posted

Hi

 

From what you have said your Employer has taken the reasonable belief route mainly due to you changing your version of events.

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I advise to the best of my ability, but I am not a qualified professional, benefits lawyer nor Welfare Rights Adviser.

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Conor2

Conor2

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Posted

Thanks for your words, I have sent in an appeal letter to the store on Friday waiting for word back after the bank holidays this week. I was dismissed with the allegation of theft through consumption. They said because I changed my story it was unclear as to what the truth was and it left them with the reason to believe that I consumed the other bottle. Im hoping that the appeal letter and my sincere apologies along with the statement from the other colleague stating that I had no part in it may change the outcome but the longer it goes on the more I'm thinking it doesn't look good. Very upsetting.

 

Sorry it took so long to reply.

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transient

transient

Posted
Posted

When the events were as straight forward as you say how could you have provided different versions of the events? think you need to elaborate here on what the difference is as something does not add up

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orfoster

orfoster

Posted
Posted

I think the fundamental point here is that the employer would be justified in the dismissal, they have dismissed you for theft, that is incorrect and you are appealing on the basis of new information, namely the statement which you have obtained from your ex-work colleague.

 

The difficulty here could well be that in any event your employer would say that there has been a break down in trust and confidence that they have placed in you, and as a result of that that breakdown is fundamental to your continuing employment and therefore you would be dismissed on those grounds.

 

Unless you have any other information?

 

Could I ask how long have you been employed with the employer? Note that you are unable to claim Unfair Dismissal for the first 12 months of work if you were employed prior to April 2012, however after this date it is now 24 months.

 

Also note that your limitation (date of which you must bring a claim) for Unfair Dismissal would be 3 months less one day from the date of dismissal.

 

However, based on the above information it would not seem as though you have a claim to take forward to an Employment Tribunal.

 

You may want to take legal advice, it seems you have been to the CAB but if you have legal expenses insurance on your property you may be able to call them and seek some advice.

 

Hope that helps.

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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Conor2

Conor2

Posted
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When the events were as straight forward as you say how could you have provided different versions of the events? think you need to elaborate here on what the difference is as something does not add up

 

Because the other workmate said in his interview that he handed them to me to put in the fridge, this didn't happen.

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Conor2

Conor2

Posted
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Posted
I think the fundamental point here is that the employer would be justified in the dismissal, they have dismissed you for theft, that is incorrect and you are appealing on the basis of new information, namely the statement which you have obtained from your ex-work colleague.

 

The difficulty here could well be that in any event your employer would say that there has been a break down in trust and confidence that they have placed in you, and as a result of that that breakdown is fundamental to your continuing employment and therefore you would be dismissed on those grounds.

 

Unless you have any other information?

 

Could I ask how long have you been employed with the employer? Note that you are unable to claim Unfair Dismissal for the first 12 months of work if you were employed prior to April 2012, however after this date it is now 24 months.

 

Also note that your limitation (date of which you must bring a claim) for Unfair Dismissal would be 3 months less one day from the date of dismissal.

 

However, based on the above information it would not seem as though you have a claim to take forward to an Employment Tribunal.

 

You may want to take legal advice, it seems you have been to the CAB but if you have legal expenses insurance on your property you may be able to call them and seek some advice.

 

Hope that helps.

 

I've worked for them for 3 years, I'm apart of the law club with the company which provide legal advice and representation. I'm going to get in contact with these for some advice around the issue.

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Conor2

Conor2

Posted
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Posted (edited)

Copy of the appeal letter,

 

 

Dear *****,

I’m writing this letter to inform you of my decision to appeal against the decision reached on the 24/05/2012 regarding my dismissal from work. The grounds for the appeal are as follows:

 

I understand that I should have told the truth from the beginning and none of this would be happening, and have regretted not doing so ever since. I felt pressured into sticking up for Dominic and should have handled the situation differently; I made a huge mistake and want to make it clear that I would never think of stealing anything. I’ve never been placed in a situation like that before and didn’t handle it correctly; it would certainly not happen again if I was to be given a second chance. I have worked for the company for almost three years and throughout these three years the company has looked after me very well, transferring me back and forth to stores while I’m at University and back home. I’ve been under enormous pressure the last couple of months as I am currently sitting my final exams at university and was wishing to get a place on the graduate scheme within the company so I shouldn’t have jeopardised my chances of this by not being honest. I have never done anything wrong in my time with **** and I’m sure anyone I’ve worked with in the bakery will confirm that I am not the type of person that would steal anything. Following this decision I have since gathered a signed statement from Dominic clearing me of the allegations surrounding the events that took place and will bring this with me to the appeal hearing.

Yours Sincerely,

Conor

Edited by honeybee13
Removng your surname to provide more anonymity.
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orfoster

orfoster

Posted
Posted

Hi Conor,

 

Just to make you aware that if your employer fails to reinstate you and you want to refer the matter to your representatives for legal advice your limitation date would be 23rd August 2012, this is the date that a claim must be submitted by which is 3 months less one day from the date of your dismissal.

 

Has the appeal letter been submitted? Also, please take your name off the bottom of your previous posting.

George Loveless - “We raise the watchword, liberty. We will, we will, we will be free!"

 

My advice is only my opinion, I am not a legal expert.

 

IF YOU LIKE THE ADVICE I'M GIVING AND ARE HAPPY WITH IT, CLICK THE SCALES ON THE BOTTOM LEFT OF THIS POST AND TELL ME.

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Sidewinder

Sidewinder

Posted
Posted

Wow! Have to admit that I am surprised in the light of the circumstances, but am delighted for you. Well done for sticking with it.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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Conor2

Conor2

Posted
  • Author
Posted

Yeah I was told 9 out of 10 times I would have been out the door, but the store manager had spoke to the people I had worked with and the managers in charge of me and they all had good things to say. I'm extremely lucky and thankful that I got it back, I thought it was hopeless trying to get it back but just goes to show if you want something enough and keep at it you'll get there.

 

Thanks for the previous advice aswell, none of the tribunal stuff matters now thankfully threw all that stuff in the bin with the biggest smile on my face.

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