HPH2/Cohen Claimform - Barclaycard ‘debt’***Claim Dismissed***

[The Other Snowdog]

Thank you for the reply Andy. I agree with your comments; my defence relies entirely on their inability to produce the required documentation. All I can do is to proceed on that basis and see where it goes from here.

[The Other Snowdog]

Hello everyone. Yesterday I received a copy of their witness statement and supporting documentation. They have produced what they call a reconstituted agreement and a copy of Ts and Cs.

 

The 'agreement' is just a photocopy of the 'Credit Agreement regulated by the Consumer Credit Act 1974. No signatures, no information relating to me at all.

 

They are referring to Carey v HSBC in their witness statement, arguing that the agreement is enforceable because of this ruling.

 

They have also produced copies of Notices of Assignment that I know I have never received. Is this something I should challenge?

 

In short, they haven't provided anything with a signature on, and have not provided any proof of posting for the letters they claim to have sent and are producing as evidence.

 

So based on what they are going to court with, and bearing in mind the Carey v HSBC case, is there anything else I can do to bolster my defence, or do I have no choice but to go with what I have and hope the judge rules in my favour?

[AndyOrch]

When did you enter into the original agreement before or after 2007? Before

 

So Carey v HSBC is irrelevant...they require the originals if they wish to enforce

[The Other Snowdog]

Thanks for the reply Andy.

[shamrocker]

Can you post the full WS you've received up here on the forum for us to see...minus any identifiable information. All in the one PDF doc too, and in the correct order.

[The Other Snowdog]

Shamrocker, here is the WS from the Claimant. I don't have access to scanning facilities so I have retyped it minus sensitive info.

 

On xxxxxxx the defendant entered into a regulate credit agreement (the "Agreement") with Barclays Bank plc T/A Barclaycard for the provision of a Barclaycard credit card, account n umber xxxxxxxxxxxxxx. There is now exhibited hereto marked xxxxxx a reconstituted copy of the credit agreement

 

In the matter of Carey v HSB, "a creditor can satisfy its duty under s78 of the Consumer Credit Act 1974 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself." The agreement is therefore rendered enforceable and the amount due under the same is fully recoverable.

 

Under the financial terms and conditions of the contract, the defendant was contractually obliged to make payments as they become due in relation to interest and charges caused by use of the overdraft facility. There are now exhibits marked xxxxx a copy of the terms and conditions provided by the claimant's predecessor in title.

 

The defendant has had the benefit of the credit facilities available but failed to maintain contractual repayments.

 

The Claimant has been informed that a default notice was served upon the defendant pursuant to s87(1) of the Act. The Defendant failed to comply with the same and the contract was terminated.

 

On 18th April 2013, Barclaycard assigned the rights and duties of the Defendant's account to MKDP LLP. Such notice was served upon the defendant on 21 May 2013. There is now exhibited hereto marked xxxxxxx a copy of the said letter.

 

On 21 September 2015 MKDP LLP assigned the rights and duties of the defendant's account to Hoist Portfolio Holdings 2 Ltd. Such notice was served upon the defendant on 01 October 2015. There is now exhibited hereto marked xxxxxxxxx a copy of the said letter.

 

On 01 October 2015, the Claimant also served such notice of the said agreement upon the defendant to inform the defendant that Robinson Way Collection Agents will be dealing with the account on the behalf of Hoist Portfolio Holdings 2 Ltd. There is now exhibited hereto marked xxxxx a copy of the said communication.

 

On 03 January 2016, a letter before action was instructed by Howard Cohen and Co and was served upon the defendant.

 

The defendant failed to file a response to the Claimant's letter before action, therefore, this claim was issued electronically in the Northampton County Court Bulk Centre ("CCBC") pursuant to part 7 of the Civil Procedure Rules in respect of electronic date issue on 01 March 2016.

 

The Claim was issued electronically in CCBC and therefore the claimant was restricted by the number of characters allowed for electronic issue. However, the Claimant contends that the claim was sufficiently pleaded for the Defence to respond as he felt appropriate.

 

The Claimant notes the content of the Defendant's allegations in his Defence particularly that he does not recognise having a Barclays account and denies receiving other documents. However I respectfully draw the Court's attention to the above mentioned paragraphs and exhibits xxxx to xxxxx which provide details and evidence of the Defendant's contractual liability in this matter.

 

The Claimant the Defence is merely a bare denial and respectfully seeks an Order that the defence be struck out pursuant to CPR3.4(2)a and judgement be entered in favour of the Claimant for the sums claimed of £xxxxxxx plus interest at 8% and fixed commencement costs along with any other sum that the Court deems just.

 

I believe the contents of this statement are true.

 

Signed and Dated

[The Other Snowdog]

Further to the witness statement received a few days ago, I have now received a court date. It would seem that they are intending to take this all the way. Presumably they must be fairly confident of getting a favourable judgement or they wouldn't have taken it this far.

 

Looking ahead to the worst case where judgement goes against me, at what point do I agree payment terms? I have quite a severe disability and am on benefits. I also have two dependant children. I am therefore of limited means, to say the least. Will payments be agreed on the day in court, or afterwards?

 

Does anyone have a gut feeling about how this will go, based on previous experience? I'm going ahead come what may as I still feel they have little in terms of real evidence, but it would be interesting to hear the views of those of you who have seen this all before.

 

Regardless of the outcome I would like to sincerely thank everyone who has contributed to this thread. You have guided me every step of the way and I am grateful for the support you have given throughout this time. I will of course be making a donation to the site to say thank you for all your help.

[AndyOrch]

Will review this later SD and get back to you...dont think of throwing the towel in just yet.

 

Andy

[dx100uk]

Need the exhibits too

[The Other Snowdog]

Hello. Sorry for the delay.

 

Hopefully there should be a PDF with all the documents attached.

 

Can you let me know if you can't see it?

exhibits.pdf

Edited October 17, 2016 by dx100uk
documents shrunk from 10Mb to <2Mb - dx

[shamrocker]

Hi TOS... sorry, I didn't notice you'd posted up the Claimant's WS above. Do you know if the claim is Small Claims Track? I note they're claiming for £11k, which is the defaulted balance plus s.69 interest, hence I ask about the track.

 

Sham

[The Other Snowdog]

As far as I know, Shamrocker, it is allocated to the small claims track.

[shamrocker]

As far as I know, Shamrocker, it is allocated to the small claims track.

 

Ok, that's good, from a prospective costs perspective.

 

So, they've served a witness statement on you..... when is the deadline for this? It's strange that you mention receiving a court date after you've received the witness statement. Can you post a copy of the court letter up for us please? (edit out any identifiable info as usual)

[dx100uk]

so they've dragged out 2 copies of barclaycrad /morgan Stanley card T&C's from their filing cabinet.

your name is not on them anywhere[and it must be]

those are generic documents that have appeared numerous times on here too [6600000 last 2 00 in a block]

they could have downloaded them from anywhere.

 

 

no signed agreement I see...

[The Other Snowdog]

Shamrocker, here is a copy of the court letter. The deadline for submission of witness statements was last week.

notice of allocation.pdf

Edited October 18, 2016 by dx100uk
6mb file reduced to .045Mb - dx

[The Other Snowdog]

Hello again everyone.

 

Further to the docs I have posted, d

oes anyone have any further comments or insight to offer?

 

DX thanks for your comments,

and yes,

I agree that what they have produced seems to amount to not very much at all.

 

The court date is drawing ever closer, so I would appreciate any advice at this stage.

I've really no idea what to expect on the day.

 

For example, how do I address the judge?

Is it Your Honour?

Also. I have asked this in a previous post,

 

but at what point,

assuming it goes against me,

is agreement reached regarding payment terms?

 

I think if I had a good understanding of the process I would feel happier about everything.

 

Sorry for all the questions, but as the date approaches I'm feeling more nervous.

[shamrocker]

What's the date of the hearing TOS?

[The Other Snowdog]

It's very soon Shamrocker. I'd prefer not to say the exact date just in case our friends are looking in.

[dx100uk]

so what doesn't matter the time for that has long gone

[The Other Snowdog]

The hearing is the beginning of December.

[shamrocker]

You really don't need to be so paranoid.

 

How familiar are you with the Carey v HSBC case?

[The Other Snowdog]

Apologies everyone.

 

I have a basic understanding of Carey v HSBC.

It is on my to-do list to study this case a bit more in depth.

 

 

From what I can ascertain, whilst the case allows a reconstituted s.78 agreement, it must contain the name and address of the debtor as it was at the date of execution, but even without such an agreement the contractual liability of the debtor remains. What that last part means in practice however I am unclear about.

 

 

If the judge rules in my favour and strikes out the claim, surely that is game over for the claimant?

Alternatively if the claim is stayed then any future claimant would still be required to produce a compliant s.78 agreement?

 

A caveat to all of the above seems to be that Carey v HSBC only applies to agreements signed after 2007.

According to the claimant this alleged debt dates back to 2001.

[dx100uk]

A caveat to all of the above seems to be that Carey v HSBC only applies to agreements signed after 2007.

According to the claimant this alleged debt dates back to 2001.

 

 

exactly

[The Other Snowdog]

So if that is the case, and Carey v HSBC doesn't apply, then the claimant must need to produce an original signed agreement, and even if Carey v HSBC did apply they would still need to produce a reconstituted agreement with my name and address on it? Either way it would seem they are falling short of what is required to be able to obtain a judgement. Would you agree, or is it not that simple?

[Old Cogger]

HSBC will state unable to find agreement as usual on earlier agreements!"