MKDP- Barclaycard due in COURT- ***Claim Dismissed***

[clarity99]

My apologies for leaving this so late, but it had appeared that the claim wasn't moving forward.

 

 

I have now found I'm in Court!

 

Claimant: MKDP LLP (claim value £9999 - !)

 

 

acknowledged and the attached defence submitted October 2014

 

Heard nothing further until

 

 

Wednesday (25/02/2015) when claimant served witness statements and included various reconstituted documents.

 

This was an electronic application from my Barclays current account for a Barclaycard made in 1992, I did not sign anything.

 

 

I intended if this ever made it to Court to rely on unenforceable and the ‘four corners of the page’ for a properly executed agreement.

None of this matters now as I am in Court.

 

The claimant hasn’t filed or served in accordance with the Court Order (to be filed and served 16/02/2015)

and I am wondering if I should object to their witness statements (for late filing)

and apply to have their claim struck out

and their claim dismissed with prejudice as they have no prospect of success.

 

 

Alternatively as their witness statement may prove they have no case,

should I leave it in and proceed to defend on the basis that no document was ever signed?

 

The Claimant was served in September 2014 with S78 and cpr 31.14 requests.

They said 31.14 didn’t apply as it was small claims.

 

 

They said they would request info from Barclaycard and that it could take 8 weeks but would forward it on

- this arrived in their witness statement on Wednesday.

 

I’m beginning to flap now.

 

Thanks for looking at this and

 

 

please, if you can help,

 

 

I’d really appreciate it.

C

Edited March 1, 2015 by clarity99
extra information

[dx100uk]

if they are trying to claim that a Barclays current account agreement

can be used in court to prove you signed up for a creditcard then that's rather laughable.

 

 

i'll let them hang themselves

[clarity99]

thank you for looking at this.

 

They sent a reconstituted document with my 1992 address and a cut and paste box that says "you have 7 days cooling off, once you have signed this document"- I never signed anything as it was over the phone. In their reconstituted agreement it shows my new address which I moved to sometime later- is this a valid, properly executed agreement, document?

[AndyOrch]

Subbed to thread.

 

Andy

[clarity99]

I know MKDP look in on this group so I'm nervous about putting up too much in case it gives anyone a heads up- but I should probably say I'm in Court very, very, very soon

[dx100uk]

we have never had a case lost or compromised through the fleecers being able to 'read'

the threads here.

 

 

you need to get things moving not worry about stuff like that

 

 

cant see how they can enforce a 1992 agreement without producing the SIGNED agreement.

and the T&C for the time of birth.

[clarity99]

we have never had a case lost or compromised through the fleecers being able to 'read'

the threads here.

 

 

you need to get things moving not worry about stuff like that

 

 

cant see how they can enforce a 1992 agreement without producing the SIGNED agreement.

and the T&C for the time of birth.

 

I know- I'm overthinking

 

WOuld I be best objecting to the witness statements on the basis they disregard the Court Order or given that they haven't produced the original or a valid reconstituted document, leave it in?

 

I understand Carey vs HSBC now means they don't need the orginal, but that they must have a valid, legitimate reconstituted document from the time the agreement was made not many years later. Would Barclaycard sending me copies of updated T&Cs get around the delinquent reconstitued document?

 

So effectively they must produce a Time of Birth, from the start of the credit card agreement document or they cannot win? I genuinely hope it is as straight forward as that , thanks dx100uk, the fog is slowly lifting.

[dx100uk]

carey does not apply to you - your is pre apr 2007..end of - they must have the signed agreement.

 

 

dx

[clarity99]

carey does not apply to you - your is pre apr 2007..end of - they must have the signed agreement.

 

 

dx

Thank You, Thank You, Thank You. You can't imagine how much of a relief that is.

 

So do you think I can turn up tomorrow and ask for their case to be dismissed with prejudice on the grounds of iredeemably unrecoverable? Or is that too easy?

[dx100uk]

i'll let andyorch answer that one.

 

 

legal is not really my bag

 

 

dx

[clarity99]

thanks dx, I do appreciate your help

[AndyOrch]

Hi clarity99

 

The hearing tomorrow is it for Summary Judgment or/ and to strike out your defence...you refer to a Witness Statement they have submitted/

 

Regards

 

Andy

[clarity99]

Hi Andy and thank you for looking at this.

The hearing tomorrow is the trial. It was transferred to my local Court in December and listed for a 90 minute hearing but I only found out this week.

 

The documents were to be filed/served 14 days ahead, but the claimant only served on Wednesday. I picked them up yesterday.

 

Having read their statement, they have not included any originals or copies, just reconstituted documents cut and pasted in all but one document. This document, is an example agreement but it has my current address and not that at the time of the agreement in 1992, so cannot be the "time of birth" agreement as DX has pointed out.

 

They never complied with my section 78 or CPr 31.14 (I made two) the latter was rejected by them as they claimed it didn't apply to the small claims track. I refer to both of these requests in my initial defence.

DX has confirmed that as mine was a 1992 agreement, Carey does not apply. But I’ve been reading around and even the hfo capital limited v wegmuller which is a 2012 refers to Carey. Interestingly to me, that case is also Barclaycard and their deficient agreements.

It is fair to say I haven't submitted anything but my original defence but hope this will go away tomorrow, if at all possible.

Again, thank you

[AndyOrch]

Many thanks ...okay so its just the normal trial proceeding....

 

Did you provide your disclosure and Witness Statement by the dates directed ?

[clarity99]

Unfortunatly, no and I realise I've now missed the opportunity.

 

Apart from the requests on MKDP, I don't have any documents to file or serve.

 

Now that I've had sight of MKDP's statement, I am wondering whether I ask for them to be excluded on the basis they filed late or leave them in as they appear to support the defence that they don't have any documents.

 

Difficult to say without sight of anything Andy, but what would you suggest I do?

[clarity99]

They have quoted Carey: 'In the matter of Carey v HSBC " a creditor can satisfy its duty under s78 of the CCA1974 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itselfd" '

 

They have included a "conditions of use" which appears to be an example of the terms and conditions. There is no date to this. There is a further set of T&Cs dated 2012 that has my name and current addreess. My address in 1992 is on a seperate page with a box in the middle that reads: "your right to cancel: Once you have signed this agreement, you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by us"; this appears to be a a cut and paste.

 

Does Carey apply to agreements dated in 1992?

[AndyOrch]

Does Carey apply to agreements dated in 1992?

 

Only on the basis of requesting a section 77/78...not for enforcement purposes.

 

You really should have submitted a witness statement if directed to do so by the Court...you cant ask them to apply sanction for the claimants late submissions if you have failed also so just concentrate on the need for the original...as already stated this claim has no connected to any current account nor can any assumptions be made or basis of probabilities be applied.

 

You can also throw into the mix should the court not appear to side with you on Carey...that the claimant or assignee has failed to supply any Notice of Sums in Arrears (if that's the case) and therefore they are again forbidden to enforce pursuent to .....

 

http://fshandbook.info/FS/html/handbook/CONC/7/18

 

http://www.legislation.gov.uk/ukpga/2006/14/notes/contents see section 10.

 

Best of luck with the hearing tomorrow clarity99 ....please update with what transpires...good or bad.

 

Regards

 

Andy

[clarity99]

Does Carey apply to agreements dated in 1992?

 

Only on the basis of requesting a section 77/78...not for enforcement purposes.

 

Thanks Andy

 

Just so I am clear, does this mean they don't need to provide me with an agreement for my Section 78 request but will need the original for the trial as they are enforcing the agreement?

[AndyOrch]

They have provided...of a fashion... the reconstituted version...but if that does not have the address of where you resided at the the time of inception...even that has failed.

 

So they are still in default of your section 78 request and are therefore not in a position to produce it for enforcement purposes......they will try to hood wink the court that they have complied...but now you know different...dont let them convince the Judge the same.

[clarity99]

You really should have submitted a witness statement if directed to do so by the Court...you cant ask them to apply sanction for the claimants late submissions if you have failed also so just concentrate on the need for the original...as already stated this claim has no connected to any current account nor can any assumptions be made or basis of probabilities be applied.

 

Fair point Andy, but I hadn't any documents to file. The Order required 'any documents you wish to rely upon be filed and served...... in accordance with the Order of xxx'

 

I understand that it is for the Claimant to prove their case, which they will struggle without any of their documents; unless they have a very good reason for not doing so, the Judge may be pursuaded to throw it out - OK, maybe wishful thinking. I read somehwhere on CAG about Mitchell v News Group Newspapers [2013]and I'm hopeful the Judge will be onside.

 

Thank you again for this, I hope you can bear with my flapping.

[AndyOrch]

You can only rely on Mitchell if you are not guilty ...I accept that you may not have had anything to disclose...but what about your witness statement...the claimant has provided one...so I can only assume the directions required both parties to submit same?

[clarity99]

They have provided...of a fashion... the reconstituted version...but if that does not have the address of where you resided at the the time of inception...even that has failed.

 

So they are still in default of your section 78 request and are therefore not in a position to produce it for enforcement purposes......they will try to hood wink the court that they have complied...but now you know different...dont let them convince the Judge the same.

 

Would the inclusion in their witness statement remedy their Section 78 default?

 

After their reference to Carey v HSBC they state 'The agreement is therefore rendered enforceable and amount due under the same is fully recoverable' - you were bang on the money!

 

C

[clarity99]

You can only rely on Mitchell if you are not guilty ...I accept that you may not have had anything to disclose...but what about your witness statement...the claimant has provided one...so I can only assume the directions required both parties to submit same?

 

'6. Each party must deliver to every other party and to the court office copies of all documents on which that party is to rely at the hearing no later than fourteen days before the hearing'

 

I've taken that to mean that as I've nothing to submit as I'm not relying on anything, I won't need to file or serve anything. My initial defence has been included in the claim pack so the Judge will have that; other than my S78 requests on MKDP and Barclaycard (will I need these) I don't have much by way of correspondence.

 

MKDP still haven't provided anything to show they have been assigned anything or that they have the right of action. They claim that the reconstituted documents (Default notice, notice of assignment etc) from various places are taken care of in Carey. I only hope, as you say Andy, that the Judge will be minded to accept what I say.

 

Thanks again.

[AndyOrch]

Would the inclusion in their witness statement remedy their Section 78 default?

 

After their reference to Carey v HSBC they state 'The agreement is therefore rendered enforceable and amount due under the same is fully recoverable' - you were bang on the money!

 

C

 

No...because they have not complied...even their reconstituted version fails....no original executed agreement = no enforcement (unless with the courts permission) which I cant see how they can grant.

 

If you have not been directed to submitted a witness statement its strange that the claimant has served one...probably in hope to bolster their claim and lack of evidence.

[clarity99]

No...because they have not complied...even their reconstituted version fails....no original executed agreement = no enforcement (unless with the courts permission) which I cant see how they can grant.

 

Thanks Andy- I'm swinging back to positive now, this is really last minute I know . I've noticed my posts include many 'buts' and that usally indicates I'm disagreeing or what have you- I'm not and I genuinely appreciate your help and expertise.

 

I guess if I need to show my section 78 request, the Claimant might object as it wasn't served/filed with the papers. I'm hoping my reference to it in my Defence will give some grace with the Judge.

 

 

If you have not been directed to submitted a witness statement its strange that the claimant has served one...probably in hope to bolster their claim and lack of evidence.

 

I've seen very few others to compare with mine, but I've taken it to mean that if you want to submit anything it must be done in a certain way otherwise the Judge may strike it out and costs may follow.

 

C