Hoist Portfolio 2/? claimform - old Barclaycard 'debt' ***Claim Still Struck Out ***

[mercyblue]

Any evidence of the creditors reading CAG information?

 

Yep they do. When I was in York county court back in 2009 the two solicitors cabot sent (they sent their own in house rather than use a local one) told me they read CAG. So I have first hand knowledge of that if they were doing it then...

[AndyOrch]

Yep they do. When I was in York county court back in 2009 the two solicitors cabot sent (they sent their own in house rather than use a local one) told me they read CAG. So I have first hand knowledge of that if they were doing it then...

 

But its still irrelevant whether they do or dont:|

[mercyblue]

The question was asked I answered it, which I did think was the whole point of this forum?

[AndyOrch]

The question was asked I answered it, which I did think was the whole point of this forum?

 

Yes it is.....and yes you did ...... so my answer to Wandsworth (as my previous post also) .....but its still irrelevant whether they view or not...wont help them in court..there is nothing the court can do and it wont aid their claim.

[obiter dictum]

Can i add just one point as an observation and i will offer no further comments due to the current court process.

 

It has been stated the statute barred starts from the last payment made.

Should that not be from when the last contractual payment was missed as a cause of action. Some 30 days later??

 

I will shut up now

[Guest]

yes, i think that has been stated on thread ie the breach ie missed payments.

a 'last payment' date cld be relevant for eg re a token payment after. which wld reset.

[AndyOrch]

Can i add just one point as an observation and i will offer no further comments due to the current court process.

 

It has been stated the statute barred starts from the last payment made.

Should that not be from when the last contractual payment was missed as a cause of action. Some 30 days later??

 

I will shut up now

 

First missed payment..that is when you break the terms of the agreement and create a cause of action.....but a creditor will then allow a further 14 days to rectify a breach...and may even allow 3 missed payments (3 months)...but that does not alter the breach..that's at their discretion and choice as and when they wish to issue a default notice

 

Andy

[obiter dictum]

Many thanks, as i thought

[mercyblue]

First missed payment..that is when you break the terms of the agreement and create a cause of action.....but a creditor will then allow a further 14 days to rectify a breach...and may even allow 3 missed payments (3 months)...but that does not alter the breach..that's at their discretion and choice as and when they wish to issue a default notice

 

Andy

 

Well that's where Andy and I disagree.

Not that the failure to make a payment represents a breach of a contract it clearly does.

But missing a payment does not immediately invalidate a contract.

 

 

The cause of action doesn't accrue until the other party has given the defaulting party notice of their breach and given them the opportunity to fix the breach.

That is true of any contract and seems entirely reasonable and I cant see any argument against that as a general concept.

 

Once you accept that concept it's pretty clear that the date of the breach is never going (well I cant think of any) to be the date of the cause of action

 

 

the defaulter must be informed of their breach and given the opportunity to fix it,

only then have all the necessary steps been completed to accrue the cause of action as defined in the 1980 act.

 

Now if we get more specific i.e the cca.

Now s87 clearly states before ANY action can be taken a dn must be served.

Well clearly any action includes legal action so that adds a further step to the above

before all the required steps have accrued and the cause of action is in place.

This actually makes complete sense as it formally ends the contract and allowing the defaulter to be sued.

 

 

Without a valid dn the creditor would actually be sueing someone they still technically had a contract with which would cause the creditor all sorts of problems and indeed does given the amount of cases they have lost due to invalid/no dn's.

 

Now its been said on here

that this allows a creditor to determine the start date by serving the dn when they feel like it.

This I think does have merit but that doesn't seem to be much help here.

 

 

The OP's defence is that its sb'd based on the last payment or at the least first missed.

Para 9 states the creditor extended the limitation period by 9 months by not serving the dn

seems to me your accepting there on the need for a dn you even use the phrase cause of action.

 

 

I would be pointing that out to the judge that the defendant is well aware of the need for a dn

before the cause of action occurs his own WS states that!!

[Wandsworth2015]

For me it's a little simpler, I clearly stated that I was no longer contributing to any credit agreement as from the 5th Nov, which could be construed as my actions were in breach of contract from that point, they then attempted to rectify their position, but despite my insistence that action had already been taken and I therefore couldn't take any further direction in supporting their view, this was essentially it.

 

BarclayCard did send a DN three months after that, however that DN is not the same date the claimant is using, Hoist has a DN another 4 months later, I've no idea where that one came from. None of them are now on my credit file, even Equifax has deleted all agreements.

 

P.s. As per the order, all documents are to be shared with all parties by 1st August 4pm, I sent mine three days ago, I've received nothing, I'm expecting a special delivery by tomorrow.

 

I only have a settled agreement from Natwest on my account with a DN extended by 24 months, I've raised a complaint reference that now too, once this is resolved, I'm in the clear, even HMRC agreed with my point of view and deleted all interest and charges. As soon as the Hoist one is over, I will be donating to CAG.... the community is simply incredible, not sure I can help anyone in the future, my knowledge is poor, but thank you all, couldn't have got here without you

[mercyblue]

I take your point wandsworth it's not really a standard case.

Nevertheless whatever you told barclays doesn't absolve them of their legal obligations.

The two dn 's perhaps complicate the matter somewhat.

 

Perhaps things might be clearer once you get their stuff tomorrow assuming you do hopefully they will have shot themselves in the foot - they often do.

[catquest]

I just looked at an old Citicard agreement

- this states that if the cardholder ends the agreement ( which Wandsworth did with his 5th Nov letter )

then the full balance is payable immediately.

 

 

No default notice is required in such a case.

 

 

However the Barclays agreement I have simply says "the agreement continues until all amounts you owe have been paid "

[obiter dictum]

The card holder can cancel any agreement and settle the account at any time, the balance would then be immediately payable.. Only the creditor can default and terminate and demand sums for a breach.

 

Slightly confused by the last post

[Wandsworth2015]

Hi guys,

 

It's 4pm on the 1st of August, the date and time that all parties must deliver to the other parties, copies of all documents on which either party intends to rely on for the 1st December 2016 hearing.

 

I have fulfilled the court order, the claimant has not, I've received nothing.....

 

Where do I stand legally, next steps?

[obiter dictum]

Wait for more replies but i would inform the court and request a strike out for failure to follow directions

Edited August 1, 2016 by obiter dictum

[AndyOrch]

I would allow a few more days ..then inform the court and ask that they issue an " or else " order or impose sanctions.

[Wandsworth2015]

they have my defence and now they have time to produce a case against it.... how is that fair?

[obiter dictum]

Ask the court for an "Unless order" if you have nothing in the next few days to strike out their claim. But that is just me, wait for more replies as i think there is a fee attached to that

[Wandsworth2015]

On the 17th June 2016 I received the Order from the District Judge stating I must comply otherwise the case is liable to be struck out or some other sanction imposed. The directions were that each party must deliver to the court and all parties, documents on which party intends to rely at the hearing no later than 4pm on 1st August 2016.

 

On the 1st July, I received a notice of allocation of fast track with the same order above attached to it. The fast track also had directions, stating the trial will be on December 1st and each party must file a pre-trial checklist no later than 1st Nov and a hearing fee must be paid by the claimant.

 

 

I complied with 17th June order on the 27th July, I delivered it by hand as the court is near my house, the claimant has yet to reply and I've no idea if they have paid the fee which was due by the 8th August.

 

Does the order still stand or does the date change from the 1st August to 1st November?

 

I'm unable to pay over £200 for an "Unless order" so if the order does still stand, do I just sit it out until 1st November and if the claimant doesn't respond or pay, will the court then "struck out" the case?

[AndyOrch]

What did the Order of 17th June state with regards to the hearing fee ?

[Wandsworth2015]

There was a second document with the order dated 27th June 2016, called a "Notice of Hearing" it stated, a hearing fee is payable by the 8th August 2016 by the claimant unless you make an application for concession.

[AndyOrch]

So 8th August is the date...have you checked to see if they have paid it ?

[Wandsworth2015]

I was posting here to understand where I stood, can I simply call the court and find out?

[AndyOrch]

I was posting here to understand where I stood, can I simply call the court and find out?

 

Yes

[Wandsworth2015]

They have asked me to email them as there is clearly an error as a fast track allocation has been made twice, no payment has been made by the claimant and no documents filed. Only I appear to have done anything.