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

[The Other Snowdog]

 

After all s127(3)-(5) does not give a Judge any discretion at all for an agreement executed before 6th April 2007 as if the agreement fails to comply with sec 61(1)(a) CCA 1974 then the Court has no power to enforce whatsoever as established in Diamond v Lowell, Wilson v First County Trust, London North Securities v Meadows.

 

As already stated the provisions of sec 127 (3-5) were repealed by the Consumer Credit Act 2006 but for agreements entered into before 6th April 2007 the provisions of sec 127(3 to 5) still have effect.

 

Thanks for your comments Andy. I've been reading a lot on this subject, as you can imagine, and there seems to be a bit of disagreement about unenforceability under s61. My understanding is that for an agreement to fail to comply with s61(1)(a) the defendant has to make a positive assertion about the original agreement, not the reconstituted agreement. The reasoning goes that a recon can be 'repaired' by correcting the missing or incorrect information, but judgement cannot be enforced whilst the claimant is in breach of s78, whereas the original agreement was what it was and cannot be 'repaired' if it is shown to have been flawed at the time it was signed.

 

Since I am not in the position to make any positive assertions about the original agreement, I must rely on a breach of s78 to prevent a judge from enforcing the judgement. As I said earlier however, this may be merely delaying the inevitable.

 

I will have a look at the cases you mention tomorrow, but in the meantime that seems to be what I have read, or am I missing something?

[AndyOrch]

Your assertions would be correct..its a complicated circle that your trying to square.....and if your agreement was post April 2007 would be a lot more simple...throw in the mix that yours is pre 2007 then sec 127 (3) - (5) applies along with s61(1)(a)

 

I think the only way to simplify it it to remove the reconstituted version with regards to enforcement and treat it only as compliance to a section 78 request...and from what you state even that is invalid as a copy and does not satisfy section 78.

[The Other Snowdog]

Hello everyone.

 

I had my hearing today and the claim was dismissed.

 

The reasons for dismissal were:

 

No evidence that a default notice had ever been served.

A non-compliant reconstituted agreement

No statement of account showing how the amount claimed had been arrived at

 

I can't thank you enough for the help and guidance you have given me over the past few months. I will of course be making a donation to the site to help ensure you continue to offer guidance and assistance to others in the future.

 

Thanks again!

[AndyOrch]

Well done TOS...thread title amended to reflect the outcome.

 

Delighted for you and many thanks for the impending donation:yo:

 

Regards

 

Andy

[theoldrouge]

Well done TOS good to hear

[dx100uk]

hey well done great result

 

now you know why we say never ever give up!!

and take with a pinch of salt certain comments made in a forum situation

[Guest]

and take with a pinch of salt certain comments made in a forum situation

have some mercy dx.

 

as said in wilson (HL),

'Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events.

The courts cannot defeat that intention by allowing some alternative means of recovery.'

 

that aside, seems was mainly re cca request non compliance, and the dn. well done.

[mercyblue]

Brill result ToS. As an extra perhaps you could say of the three reasons given which you thought was given the most prominence if indeed any was. Presumably been unable to show how they had arrived at the figure they were claiming is pretty much a fundamental flaw in any case.

[The Other Snowdog]

The judge said the issue with the default notice 'was enough to strike out the claim on its own'.

 

 

I pointed out the flaws in the recon, which were the incorrect address and also the incorrect creditor name and address (!).

 

 

I The judge obviously took those flaws very seriously, and the claimant was unable to offer anything to counter.

 

 

I think the statement of account issue was just the icing on the cake, but nevertheless it was a factor in the decision.

 

The claimant asked for an adjournment to enable him to serve a default notice and to obtain statements to bolster the claim, but the judge (quite rightly) denied this on the grounds that HPH2 should have been better prepared to fight this hearing.

 

In short, I think I have been gifted this dismissal due to the claimant's incompetence.

I'm not sure if it would have gone this way if it hadn't been for the multiple failures on their part.

 

I read somewhere a few days ago that 'the devil is in the detail' in these cases.

I think my experience yesterday has shown that to be very true.