HPH2/Cohen Claim Form barclaycard 'debt'***Settled by Tomlin Order***

[Guest]

re post #194, the order re copies relied on and originals of those copies

[shamrocker]

re post #194, the order re copies relied on and originals of those copies

 

Surely 'originals' is an ambiguous term and applies to the original where a photocopy of a particular document has been provided at disclosure, and it is important that the authenticity of that document can be scrutinised at the hearing. In this case, the Claimant is not hiding the fact that the agreement and DN are recons. It is for the defendant to point out why, in this instance, recons are not acceptable.

 

That's my interpretation of it.

[isbo]

Only someone that's been there and seen/heard it or is of a legal standing can truly answer that, surely?

[martin2006]

OK thanks Martin. How best to phrase that into the SWS?

 

It is denied that a default notice pursuant to s87 and s88 of the CCA1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default as per the court's directions of xx/xx/xxxx

 

Edit to suit isbo

[Guest]

Surely 'originals' is an ambiguous term and applies to the original where a photocopy of a particular document has been provided at disclosure, and it is important that the authenticity of that document can be scrutinised at the hearing. In this case, the Claimant is not hiding the fact that the agreement and DN are recons. It is for the defendant to point out why, in this instance, recons are not acceptable.

 

That's my interpretation of it.

yes, thats what i was pointing to re the posts mentioning 'originals'. ie originals of the copies (disclosed) relied on, given the disclosure direction prior to it.

[isbo]

It is denied that a default notice pursuant to s87 and s88 of the CCA1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default as per the court's directions of xx/xx/xxxx

 

Edit to suit isbo

Thanks Martin.

[shamrocker]

Only someone that's been there and seen/heard it or is of a legal standing can truly answer that, surely?

 

Well, let's put it this way - if they need to supply the original, i.e. agreement & DN... you need to state this and the reasons why in your WS. Otherwise, what's the point in them bringing the original recon agreement and original recon DN? They don't need to present the original executed agreement unless you push them to, as suggested by JR above. In that case, they would ordinarily provide a copy of the original in a response WS, then bring the original to court (because it's an original of a document they've disclosed).

 

If you don't get my point on these things then you're better off not making assumptions like "only someone who's been there...etc", as when you understand the process, the meaning behind the Order is pretty clear and logical.

[Guest]

ps re my earlier post #332, thats why i asked/wondered before whether they turned up at the original hearing with any 'originals' so ordered. the order was to have such 'brought to the hearing.'

 

and, i meant original docs of any relied on

[isbo]

I actually meant because you yourself HAVE been there etc, sham.

[isbo]

Well if they show up on Monday with the originals, it's all academic.

[shamrocker]

I actually meant because you yourself HAVE been there etc, sham.

 

Ok, fair enough...misunderstanding, sorry!

 

TBH, I am only applying logic based on what I know the judge will give weight to. We need to forget about what will happen in court and just focus on what they've supplied so far. Challenge their evidence and tell them why that evidence is not good enough to win the claim in court. The last resort is to see the original, because when you're at that stage and they present it, you're probably stumped. The probable truth is that they do not have 'originals' so it's a case of building a defence that renders these recons invalid with regards enforceability.

 

Hope that makes sense.

[Guest]

Well if they show up on Monday with the originals, it's all academic.

not necessarily.

depends whether it is all compliant and enforceable.

this monday?

[isbo]

It does, thanks. And no probs re misunderstanding, heaven knows I've done enough of that here.

So are we good to go with my SWS do you think? I reckon it needs to go in tomorrow's post, you see.

[isbo]

not necessarily.

depends whether it is all compliant and enforceable.

this monday?

Yes mate.

[Guest]

am behind with the posts, thick and fast

i'll exit. good luck whatever you decide to do.

[jackreacher]

Well if they show up on Monday with the originals, it's all academic.

 

 

If they bring originals to court but do not supply you with a copy of the originals this week .

 

 

.You Politely tell the Judge you have had no time to study them and as you are an lip you need time and ask for an adjournment.

 

 

It is for the claimant to provide you with these documents..

. a pound to a penny they will not be the same .

 

 

I have never seen a set of prescribed terms with both those cancellation notices on.

 

I have seen nothing about your account ever having been terminated.

.the POC and your disclosures mention nothing that I can see.

 

Do not accept anything from them before hand in the court house as they will then claim you have had time to study it.

[isbo]

am behind with the posts, thick and fast

i'll exit. good luck whatever you decide to do.

Ha! Your advice has been brilliant, thanks Ford. And thanks for the good luck wishes.

[jackreacher]

And me Ford must be my age.

[isbo]

If they bring originals to court but do not supply you with a copy of the originals this week ..You Politely tell the Judge you have had no time to study them and as you are an lip you need time and ask for an adjournment. It is for the claimant to provide you with these documents... a pound to a penny they will not be the same . I have never seen a set of prescribed terms with both those cancellation notices on.

 

I have seen nothing about your account ever having been terminated..the POC and your disclosures mention nothing that I can see.

 

Do not accept anything from them before hand in the court house as they will then claim you have had time to study it.

Brilliant advice, thanks jackreacher.

[martin2006]

Wait for Andy to give you the nod first isbo, have you added everything you need to in? If so post it for checking

[Guest]

Ha! Your advice has been brilliant, thanks Ford. And thanks for the good luck wishes.

it seems as if am one step behind the posts already posted.

i trust that i have helped. have been in the debt mire myself. and hate the fact that these planks give unwarranted stress to people, regardless of what the circs are.

[isbo]

SUPPLEMENTARY WITNESS STATEMENT:

 

IN THE County Court of x CLAIM NO: xxx

 

BETWEEN:

HOIST PORTFOLIO HOLDING 2 LTD Claimant

 

-and-

 

MR XXX Defendant

 

SUPPLEMENTARY WITNESS STATEMENT OF MR XXXX of ADDRESS.

 

I. Mr x the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1. In relation to the claimant's paragraph 3.

- I have no recollection of entering into an agreement with Barclays in 2008,

indeed my recollection is that it was in 2006, and whilst I have no existing documents available to you support this, the Claimant is put to strict proof to evidence the commencement date by complying with the Court’s request for original agreement and documents.

 

 

2. I challenge the reconstituted agreement as it is clearly in breach of s.61 of the Consumer Credit Act 1974 thus - signing of the agreement, as it does not contain a signature for the debtor and creditor.

Therefore, it is improperly executed.

 

 

3. Section 65 of the Consumer Credit Act states that "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only." but the Court's discretion to determine the enforceability of pre-April 2007 agreements is removed by virtue of s.127(3).

 

4. It is denied that a default notice pursuant to s87 and s88 of the Consumer Credit Act 1974 has been received and the claimant is again put to strict proof to produce a true copy of the original default as per the court's directions.

 

5. I challenge paragraph 4 of the claimant's submission

- i.e. that a reconstituted agreement is rendered enforceable as a consequence of Carey v HSBC: This case applies to how a creditor can satisfy their duty under the Consumer Credit Act 1978 following a s.78 request by the debtor, but in no way does it render a recon agreement 'enforceable'.

Waksman QC, in the aforementioned case, was quite clear that a reconstituted agreement (which is effectively an improperly executed agreement) could only be enforced at the discretion of the Court, but this discretion only exists for post-April 2007 agreements.

 

 

Until the claimant supports with evidence their claim that the agreement meets the criteria necessary for the Court to have discretion with respect to its enforceability, their assertion of compliance with s.78 being sufficient grounds for enforceability should be denied.

On the basis of the above I request that the Court rejects the claimant's claim.

6. As per CPR 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

7. On the alternative, as the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

8. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

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

 

Signed

 

Dated on this day 4th October 2016

[isbo]

it seems as if am one step behind the posts already posted.

i trust that i have helped. have been in the debt mire myself. and hate the fact that these planks give unwarranted stress to people, regardless of what the circs are.

You've been wonderful. As I sit here once again my chest is pounding with stress and worry. I hate these b@s****

[Guest]

. As I sit here once again my chest is pounding with stress and worry.

hey, dont let them get to you like that.

thats what i mean. a debt is a debt. eff it. its not something to ail you. please dont let the b'stewards get to you.

[isbo]

I can't help it mate. I need a drink I think!