Hoist/cohen claimform - Ex Barclaycard debt.

[244065013]

Hi,

 

I have my hearing tomorrow and haven't received any instructions on how to join the Skype call. Have emailed my details across last week. Have been trying call the court but no luck so far. Has anyone been in this situation before? Any suggestions?

 

Secondly, any points/tips for the hearing would be appreceated.

 

Many Thanks

[AndyOrch]

 

[244065013]

At the hearing,  judge asking why a recon with varied cant be used, any ideas?

[AndyOrch]

" If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?

If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms."

 

 

Carey -v- HSBC [2009] EWCH 3417 (QB)

Date: 23 December 2009
Judge: His Honour Judge Waksman QC

[244065013]

 Unfortunately the judge allowed the appeal and accepted the recon and varied terms.

 

Thanks for all the help.

[AndyOrch]

What appeal...source ?

[244065013]

Sorry,  not appeal, I meant he allowed the claim.

[AndyOrch]

Carey was the claimant...have you actually read the judgment ?

[244065013]

Sorry Andy, I don’t quite follow

[AndyOrch]

33 minutes ago, 244065013 said:

Sorry,  not appeal, I meant he allowed the claim.

 

You said the claim was allowed...the claimant was Carey...not HSBC..they were the defendants.

 

Anyway section 82 (2b) of the CCA1974 covers it....refer your Judge to the legislation.

[244065013]

Sorry if I was unclear in what I wrote. To clarify, I mentioned the above and about the reconstructed agreement with varied terms etc but the judge said claimants (my case) recon agreement was acceptable even without signature etc and accepted Hoist's claim, 

 

So I guess it's the end of the road for my case, is there anything else I can do e.g. appeal or is that it.

 

Thanks again.

[AndyOrch]

So has the claimant got judgment ? 

 

Recons are acceptable on none varied agreements either in response to section 78 request or even enforcing the agreement ...with or without signatures providing it mirrors the original agreement that was determined in Carey V HSBC.

 

If an agreement has been varied...its impossible for the claimant to reconstitute the agreement to encompass the terms of the original and the later varied terms....its just not possible.  

 

Section 82 clearly states....

 

(2)Where an agreement (a “modifying agreement ”) varies or supplements an earlier agreement, the modifying agreement shall for the purposes of this Act be treated as—

(a)revoking the earlier agreement, and

(b)containing provisions reproducing the combined effect of the two agreements,

and obligations outstanding in relation to the earlier agreement shall accordingly be treated as outstanding instead in relation to the modifying agreement.

 

I very much doubt your reconstituted version contains all the original and modifications....and therefore the Judge has disregarded the legislation

[244065013]

Yes the claimant won.

 

So do you think there is a case for appeal?