Link barclaycard claim stayed since oct 2014 & kearns sols***Claim Discontinued***

[dx100uk]

cant if the T&C's are illegible.

and the refs to them in the application form cant be read either

 

another good trick link always pull

when they supply the supposed T&C's for a Barclaycard app form

is they cut off the little date stamp around the edge of each page

so you don't know when they are from

 

the devil is in the detail.......

 

look very carefully on the app form

it will ref several clauses [xx.x in it]

referring to the external enclosed T&Cs.

 

 

then you find that number doesn't exist .!!

 

 

dx

[AndyOrch]

Carey was a case where the debtor was suing the lender and the onus of proof was on the debtors to show the agreement was unenforceable...so Carey is irrelevant in this case and also the agreement is pre April 2007 and therefore does not satisfy S61.

 

But I take on board your comments MB as unfortunately many judges are (incorrectly in my opinion) accepting this.

 

Andy

[b4nkers]

Hi all,

what I do know is that the T&C's that were sent to me are illegible.

Hard copies are in the post apparently but they won't arrive until after the dead line

- even if they are easy to read, I assume it will be the emaiiled docs that needed to comply with judges general directions order as previously received:

 

1) The claimant shall by 13th June 2016 give to the Defendant copies of all the documents upon which it proposes to rely, accompanies by a disclosure statement. In default of strict compliance the Claim shall stand struck out with need for further Order.

 

What happens next? (as General directions says 2) claim is stayed until 4th July for parties to settle case and narrow the issues)

 

3) By 4pm 18th July the Claimant must notify the court in writing of the outcome of the negotiations

(without disclosing any matters which remain subject to ‘without prejudice terms)

and what, if any, further directions are sought. Failure to comply with the direction or to engage properly in negotiations may result in the application of sanctions. If settlement has been reached, the parties must file a consent order signed by all of them.

 

Is there anything I need to do at this point?

 

Thanks for your help

Ben

Edited June 13, 2016 by b4nkers
correct typo

[AndyOrch]

Nothing happens next until they inform the court 4pm 18th July they wish to proceed because the above guff has failed to convince you.

[mercyblue]

Carey was a case where the debtor was suing the lender and the onus of proof was on the debtors to show the agreement was unenforceable...so Carey is irrelevant in this case and also the agreement is pre April 2007 and therefore does not satisfy S61.

 

But I take on board your comments MB as unfortunately many judges are (incorrectly in my opinion) accepting this.

 

Andy

 

Rightly or wrongly the claimant is highly likely to cite the carey judgement which is why people need to be familiar with it.

[b4nkers]

Thanks all for your input,

 

I will familiarise myself with the Carey case in case it is used.

 

So next steps then,

the claimant informs the Court they still wish to proceed on before 18th July

- does this then result in a hearing date.

 

Will I have the opportunity to put my case across in writing prior to any hearing date?

 

If a hearing is next step

- should I consider a lay person to help on the day.

 

I''m also due to go away in August

- should inform the Courts about this now or will they ask confirm availability closer to the time.

 

Am I worrying too much?

 

Thanks everyone.

[dx100uk]

already answered in post 30 & 54.

 

 

and unless you are viewing threads when not logged-in?

you really need to go read a few like threads

or threads in this present forum...

as I cant see you've read any

thus trying to help yourself first?

 

 

dx

[AndyOrch]

Thanks all for your input,

 

I will familiarise myself with the Carey case in case it is used.

 

So next steps then,

the claimant informs the Court they still wish to proceed on before 18th July

- does this then result in a hearing date. Yes unless they contact you beforehand and try to mediate

 

Will I have the opportunity to put my case across in writing prior to any hearing date? Yes via a witness statement

 

If a hearing is next step

- should I consider a lay person to help on the day. Dont think so.

 

I''m also due to go away in August

- should inform the Courts about this now or will they ask confirm availability closer to the time. They already asked you in the DQ what dates you would be unavailable?

 

Am I worrying too much? Far too much but its understandable if never had to deal with this before

 

Thanks everyone.

 

Andy

[b4nkers]

Hi all, thanks for you guidance.

I've made a small donation today as a token of my appreciation for help received so far.

 

I've received some further correspondence today-

from Kearns a settlement offer by way of a Tonlin order?

 

 

I've amended some of the figures slightly and uploaded a redacted version of the correspondence.

 

 

Interested to hear your views on the offer.

Tomlin Order.pdf

[dx100uk]

i'v e removed it so only siteteam can see it as a tomlin is usually confidential

 

however,

this is a begging gesture me thinks

 

please give us something

before july 18th

else we'll have to discontinue the case?

 

 

re post 54

 

dx

[b4nkers]

Thanks Dx, I'll ignore the offer and wait to see. I'll be making another donation once this has all gone through, thanks for your help.

[b4nkers]

I've received a county court hearing date for November with a request to

'file and serve copy documents' by 1st September

including a witness statement (redacted letter attached).

 

 

(I'm assuming this means I send copies to both the Court and the claimant).

 

 

Is it ok if the docs arrive on the actual day of the 1st of September?

 

Thinking about including the following points in the witness statement:

 

Claimant has been unable to produce a copy of executed agreement following CCA request received on XX date by claimant.

 

Claimant has sent illegible document and illegible terms and conditions

(Not sure how I can demonstrate this if challenged as could they argue it was my printer at fault

- assume though their copies are just as poor as mine)

- can I disregard the paper copies they sent in the post that arrived a few days after the deadline.

 

Saw the following point elsewhere that the claimant is not FCA regulated and not authorised debt collector.

 

Would now be a good time to redact or amend Part 20 - Counterclaim in the witness statement?

 

Thanks in advance for guidance.

 

Ben

Notice of Allocation to the Small Claims Track -Court Hearing Date.pdf

[dx100uk]

wait and see if they actually do pay the fee by 1-9-16 first.

 

 

not sue on cost [and IF] you can claim them

but £18pHrs rings a bell if you court

+copying/ink/electric...no only joking

[b4nkers]

Thanks DX.

 

 

I'm in the middle of drafting a witness statement - as this needs to be 'filed and served by 1st Sept'. I assume docs can arrive on the 1st September? I understand I need to include all the documents I intend to rely on in the hearing.

 

 

Thanks

Ben

 

Edited August 26, 2016 by b4nkers
typo

[AndyOrch]

Yes this is standard disclosure and exchange of witness statement...your disclosure will be CPR 31.14 and CCA requests and any responses and your witness statement including any exhibits you refer to.

 

Andy

[b4nkers]

Thanks Andy- CPR?- do you mean including any relevant sections of the CPR to support any of the points in the statement.

 

 

Ben

[dx100uk]

no you simply make ref to you sending them

and produce copies if the letts as exhibits

and if you've proof of postage exhibit that too

 

 

use COPIES not originals

[b4nkers]

Thanks all for your advice. I've attached a redacted copy of my witness statement with proposed exhibits. Any suggestions or improvements greatly appreciated.

 

 

thanks

 

 

Ben

Witness statement - Redacted.pdf

[AndyOrch]

Requires a statement of truth at the end Ben

 

STATEMENT OF TRUTH

 

I believe that the facts stated in this Witness Statement are true.

 

 

Dated XXXXXXX

 

Signed xxxxxxx

 

With regards to the contents...it heavily relies on the claimant not being able to disclose the requested documents in particular the agreement....and not so much with regards to any dispute.Lets hope DJ stands firm and makes them comply with the CCA1974 and agrees with your contentions.

 

Regards

 

Andy

[b4nkers]

Thanks Andy, I'll add the statement of truth at the end.

 

Re: the contents- yes I thought it was the only solid thing that I felt I could rely on though should it go to hearing I'm aware this point will be challenged with case law as noted in earlier posts but will prepare for this.

 

Not sure if you think there are other points that have merit that I could include? Is it worth mentioning Highbridge/debt management firm/ their original defence (and the fact that they are no longer trading).

 

Thanks

 

Ben

[AndyOrch]

You include anything that is relevant in support of your defence

[b4nkers]

ok thanks.

 

Ben

[shamrocker]

Hi Ben,

 

I've just scanned over your WS and some relevant parts of your thread. I think you need to make some 'positive assertions' about why the agreement is not properly executed and, therefore, irredeemably unenforceable. i.e. it is an application form and does not contain the original creditor's signature, therefore cannot be the executed agreement (as stated on the Claimant's disclosure) - also, it is missing the following prescribed terms - list them. By doing this, you force the Claimant's hand - they will need to supply a legible copy of your 'executed agreement' that also complies with the CCA 1974. Personally, I wouldn't even bother with mentioning the legibility issues - let the claimant mention it when you point out the absence of prescribed terms (absent because they cannot be read). A judge may deem you to be straw clutching if you try to push the illegibility of the agreement and little else.

 

Does the above make sense?

 

Feel free to listen solely to Andy on this, but I state the above based on first hand experience and have fallen foul of taking the same route as you seem to be doing.

 

Sham

 

P.S. I badly need to read up on the issue of executed v. unexecuted agreement, and also the necessary prescribed terms, etc. I haven't got time at the moment, but just wanted to give some brief input for now so as to give you a different perspective on how to attack the claim.

[b4nkers]

Thanks Sham for the guidance, yes it makes sense and I shall re draft the witness statement to accommodate the valid points you raise.

 

(The disclosure documents that were sent by the Claimant were originally emailed to me just before the deadline. Hard copies followed on in the post but were received after the deadline. Though the hard copies were slightly better quality I would like to disregard these as they arrived after the deadline - not sure if I can or not?)

 

Did you have a thread here on in relation to your experience I could refer to?

 

Many thanks for your input.

 

Ben

Edited August 30, 2016 by b4nkers
typo

[shamrocker]

If you look through my old posts, it's on there somewhere, but there's very little of relevance to be honest. I received a real mixture of advice, but none of it actually narrowed down any specific issues I should have been using to challenge the legal basis of a claim that relied upon an illegible agreement document. Is the agreement/application form that they posted to you legible at all?

 

When are you supposed to serve your disclosure and WS by?