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hoist/? claimform - old Barclaycard 'debt'***Claim Dismissed***

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Hi all,

 

after having spent the whole weekend trawling through this site and trying to come to terms with all the rulings I have 'borrowed' wordings from many of the previous SWS to aid me putting something together. it seems too long at the moment but please take a look.

 

IN THE county court of x CLAIM NO: xxx

 

BETWEEN:

HOIST PORTFOLIO HOLDING 2 LTD Claimant

 

-and-

 

MR XXX Defendant

 

I make this Supplemental Witness Statement further in support to my previous witness statement.

 

1. I submit this Supplemental Witness Statement due to receiving claimant sending their disclosures and witness statement late, this I fell was to disadvantage me, even though I had requested these documents, in my requests dated 2016.

Exhibit 1. My letter requesting documents by recorded delivery to which none was produced.

 

2. In the claimants witness statement Section 3, marked "XXX", they claim to rely on a reconstituted agreement. In fact they have produced 2 reconstituted agreements, one from 2008 and the other 2011. Neither of these match with the date as mentioned in point 3 of their witness statement of xxth March 2009 when the credit agreement was entered into. Furthermore both of the agreements have 2 different addresses with the 2011 having an incorrect flat number. Furthermore the 2011 agreement is listed with an address I vacated in 2010. This in turn cannot be considered a true accurate version of the agreement.

 

A reconstituted agreement must be an exact replica of the executed agreement less signatures, the reconstituted agreements that the claimant are relying on in court are simply invalid and does not comply with the CCA 1974 in either the giving of information pursuant to the section 78 or the requirements required for enforcement under section 78.6 (b).

I refer the court also to the case Kotecha v Phoenix the obligation under Section 78 to supply a document which sets out the original terms, including the original terms as to interest rates.

Exhibit 2 (case extract Kotecha v Phoenix)

 

3. 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 could only be enforced at the discretion of the Court.

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.

Exhibit 3 (Carey V HSBC extract)

 

4. I challenge Exhibit XXX, statements presented are templates and not true copies. Furthermore the first Statement is for XX 2011 and the second is from 2012 with addresses listed for a property I vacated in 2010 and with the incorrect flat number.

 

5. 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 furthermore it is dated XX 2011 to a property I vacated in 2010.

 

A valid Default Notice is a strict requirement before enforcement action can be taken following a breach of a regulated agreement. Whilst the Claimant states that one was issued, and has disclosed a "reconstituted" version from their system, they have no evidenced that one was actually issued following the alleged default and thus complied with the terms of the Consumer Credit Act 1978. The Claimant is prevented from taking enforcement action until a valid Default Notice has been issued

 

6. Exhibit XX is challenged. It is denied that a Notice of Assignment was received with the alleged date XX 2013 and the claimant is again put to strict proof to produce a true copy of the original. Exhibit is merely a template and is also addressed to a property I vacated in 2012.

 

7. Exhibit XX is challenged. It is denied that a Notice of Assignment was received and the claimant is again put to strict proof to produce a true copy of the original not a template.

 

8. Until the claimant supports with evidence their claim that the Agreement meets the criteria necessary for the Court to have discretion with respect to whether it is enforceable, their assertion of compliance with s.78 being sufficient grounds to enforce should be denied. On the basis of the above, I request that the Court rejects the Claimant's claim.

 

9. I Challenge also point 12 of the claimants witness statement. The figure for the amount claimed appears to differ greatly from the particulars of the claim and also with the amount quoted on point 2 of the claimants Witness Statement.

 

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

 

11. 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.

 

12. 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

 

 

 

Also from looking through the previous similar cases I'm even more worried now... it seems to really be 50/50 as to which way the judge rules, honest opinions please on my chances please!

 

thank you all for your help so far. If it wasn't for this site I think I'd certainly have had a nervous breakdown by now!

 

CC

Edited by Andyorch
Edited

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Hi Andy or any other members if you have some time over the next day or so please could you take a look at my SWS I need to send it wednesday. To arrive thurs/fri which is 3 working days before.

 

Many thanks to al

Cc

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Excellent thank you kindly Andy...

what is your opinion do you think I have sufficient to win (I know it's always at the judges decision)

 

I've read somewhere about a point of hearsay and the person who signs the witness statement not attending, is anyone able to shed some light for me on this?

 

Many thanks for everyone's time and input.

 

CC

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Hi Andy

 

just preparing for my court appointment and re-looking at all the details.

 

 

On the claimant WS they have stated that the statements in this WS are made from my own knowledge on matters of which I have been advised by the claimant.

 

 

Does this mean then that they are relying on hearsay and that the person who has signed the WS must attend court as they have not as far as I know requested permission to be absent?

 

also checking through and found what I think is a point i need to clarify:

a) The Default notice (issued by debt collectors acting as agents for Barclays) they have submitted dated 2011 shows one total figure owed

b) A copy of a statement they have issued as evidence dated 2012 (one year post default notice) has a different figure about £200 extra from the Default Notice

- the added Notice to allocate it to hoist shows this same additional £200.

 

can additional fees and costs be added on top of the Default Notice?

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They can be absent providing they have followed the process outlined in the above linked thread IE CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act.

 

I suppose a default Notice amount can increase up until termination of the agreement ...anything added after that amount....bar court costs and solicitor fees are questionable


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also can i check something maybe I'm being silly here and don't understand how this works..

 

 

.the statement they have provided has a purchase interest rate of 1.313%

this doesn't correspond to the standard PA rate they quote on the agreement which is 12.4% pa.

 

 

can i argue this as proof that these are not the actual copies and are fabricated templates

or can they get away with it because the T&Cs they provided as WS states Annual Interest Rates variable?

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the calculation of monthly to APR doesn't simply mean you X 12!


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I wouldn't get bogged down with specific details of the agreement..but if you feel and can justify stating the T&Cs are not valid or compatible with the agreement then state that.


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The Default Notice provided does not comply with s88 of the CCA.

There is no mention of your account being terminated as a result of not making the payment.

 

 

It also does not include the Name and Address of Barclaycard as it should.

The date is blanked out so I cant tell if you received the 14 clear days required either

but definitely check this, even if it seems that it gives the required days check there are no bank holidays or anything.

 

 

It is supposed to give you 14 clear days from date of service

(Royal mail delivery, the same rules don't apply as they do with court documents service times).

 

 

If I was you I would incorporate this into my Supplemental Witness statement,

s78 requests are only valid on live agreements which you can argue yours is as a result of the account not being terminated correctly.

 

 

Fingers crossed you get a Judge who's sympathetic.

I'm not a solicitor,

everything I know is a result of going through the same thing and finding out what I could.

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you completely right thank you....my mind is so blank I've read these things and laws and i'm just not absorbing or seeing the actual parts where it fails but you've just clarified it completely!

 

I've checked and it's not 14 working days! They've obviously included weekends, counting including the date on the DF it's 12 working days!!!

 

Also you are right it does not include the name and address of the creditor it only shows the name and address of the Debt Collector and it does not state that the agreement is terminated if payment is not made.

 

also I'm looking at the agreements t&Cs they have supplied and nowhere does it state the amount of credit should these reconstituted version. Should it not have the details of what credit limit they are giving?

 

Doesn't the reconstituted agreement have to include all the prescribed terms including the amount of credit otherwise it fails S61 of the CCA?

 

am i talking crap and this was repealed so not applicable to post 2007 agreements?

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OMG you completely right thank you....my mind is so blank I've read these things and laws and i'm just not absorbing or seeing the actual parts where it fails but you've just clarified it completely!

 

I've checked and it's not 14 working days! They've obviously included weekends, counting including the date on the DF it's 12 working days!!!

 

Also you are right it does not include the name and address of the creditor it only shows the name and address of the Debt Collector and it does not state that the agreement is terminated if payment is not made.

 

Mercers were allowed to issue Default Notices in their name acting under BC permission

 

also I'm looking at the agreements t&Cs they have supplied and nowhere does it state the amount of credit should these reconstituted version. Should it not have the details of what credit limit they are giving?

 

Dont need to on a reconstituted version

 

Doesn't the reconstituted agreement have to include all the prescribed terms including the amount of credit otherwise it fails S61 of the CCA?

 

No

 

am i talking crap and this was repealed so not applicable to post 2007 agreements?

 

Correct :sad:

 

You may have argument if 14 days was not allowed on the DN...but a Default Notice does not need to state a termination date or mention termination at all..its not one of the prescribed terms.

 

And please disregard the following...

 

" s78 requests are only valid on live agreements which you can argue yours is as a result of the account not being terminated correctly."

 

 

Regards

 

Andy


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literally feel up against a corner so long as they drum up a bunch of templates it's all good in the eyes of the law.

Even their statements are to old addresses and with purchases that are not mine or definately.

 

ANDY is there anything at all in regards to my SwS or paperwork that you can see i can use it seems that with templates used all the laws are covered

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A Default Notice must be in the prescribed form detailed in The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. To quote

 

Action intended to be taken by creditor or owner

 

6. A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

 

(a)to terminate the agreement;

 

(b)to demand earlier payment of any sum;

 

©to recover possession of any goods or land;

 

(d)to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

 

(e)to enforce any security;

 

(f)to enforce any provision of the agreement which becomes operative only on a breach of another provision of the agreement as specified in the notice,

 

It was a Judge, in a Court, in a Consumer Credit case who informed me about the s78 not being applicable to terminated agreements so take from that what you will.

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That is section 87 Need for default notice....Section 88 states the Contents and effect of default notice.

 

The default notice must contain information in the prescribed terms about the consequences of failure to comply with it and any other prescribed matters relating to the agreement...Termination is one of many options....

 

With regards to section 78 requests...the only 2 reasons when subsection 1 not apply......

 

(3)Subsection (1) does not apply to—

 

(a)an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

http://www.legislation.gov.uk/ukpga/1974/39/section/78

 

 

 

Betty your SWS is fine.....there is no such thing as a reconstituted version of a Default Notice...the claimant has failed to disclose.

 

Andy


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Your post doesn't make sense.

 

 

Google Rankine vs American Express for Case Law on the matter of s78 request.

 

To quote the Judge

 

'In the Tesco case, where they are seeking enforcement, section 78(6) of the Act does not have the effect contended for by the Rankines.

 

First, the prohibition is against a creditor ‘under an agreement’.

The agreement was at an end.

Therefore there is no reason why there cannot be enforcement.

 

Secondly, the word ‘enforce’ is not descriptive of the commencement of proceedings.

 

Bringing proceedings during a time when the agreement has been brought to an end is only a step taken with a view to enforcement. It is not actually enforcement.’

 

To clarify - my posts were not intended to belittle any of your opinions or statements, I just wanted to inform Betty about things which may help or harm her.

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rankine were a get out of debt free company that got caught out and debunked later on ,.

sadly many debt buyer/dca's roll that out as an excuse for this and that agreement arguments to this day.

MacGuffick will be next...


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I dont need to Google Rankin or Carey...been here long enough to know them off by heart.....PS Rankin was the Claimant.... a Claims management Company and not a creditor.

 

As far as the precise point is concerned in Rankine the Judge had concluded that the information under ss77/78 had already been provided and consequently that anything else that he said was obiter dicta (things said along the way) which does NOT bind another court

 

Rankine generally was wrongly decided - the Judge appeared to have confused the meaning of the word enforce - which in some ways was crucial to his reasoning. The Judge held that to issue proceedings was not enforcement and that consequently the ban in S77/78 on enforcement did not apply.

 

The decision was made per incuriam (without consideration of the relevant authorities) There is a House of Lords decision which binds every court which was not considered. The case is Wilson & others v Secretary of State for trade and industry [2003] UKHL 40 at paragraph 31 of that judgment Lord Nicholls of Birkenhead says that entering Judgment is enforcement. Logically if entering judgment is enforcement then issuing proceedings must be. The Judge in Rankine was not addressed on the case of Wilson and therefore did not consider the authority.

 

A per incuriam decision is not binding and may be ignored

 

 

Apologies for the hijack Betty but we sometimes get this and points have to be clarified so others dont take the advice as gospel.

 

Regards

 

Andy


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Hi All

 

I wanted to wait a while for everything to settle.

 

the Judge was utterly amazing he also threw out the case!!

 

He pretty much argued the case for me with the ''per day'' solicitor that turned up.

 

He had a go at them for not having provided the full documentation that I requested from day 1 and said how is the defendant supposed to investigate their case and put it together if they don't know what they are being accused of.

 

He was very clear to them as well that if they are providing reconstituted docs

they must advise why - not just for the sake of it.

 

they must advise that xx happened to the originals i.e. a fire

and we have checked with Barclay card

and this is what they have advised was in use at the time

rather than just presenting it.

 

don't just assume you can present a reconstituted copy at the last stage,

you need to show that sufficient steps have taken place to check it was the correct agreement.

 

the main reason for dismissing was that the DN was invalid!!

They hadn't given 14 days having counted the days inc weekends etc it was only 12 days.

 

Also all the docs had been sent to addresses I was not present at for several years and in fact most of the addresses had wrong flat numbers on them.

The only thing sent to the correct address was the court docs.

 

Moral of this is don't give up or despair.

Build a strong case.

Do all your requesting and handing in of paperwork on time.

Do a SWS if necessary.

Find those gaps in their case i.e. not enough notice on the DN.

Present as much evidence as you can gather.

 

Thanks to everyone on this forum for all your time and input without it was much appreciated.

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Well done Betty and many thanks for the conclusion ...thread title amended to reflect the outcome.

 

 

Regards

 

Andy


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hey well done

you go a smart judge there

knew his onions


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