Hoist/cohen claimform - Ex Barclaycard debt.

[AndyOrch]

So far so good...but you really need to do a bit of digging and find out the default date and the date of last payment to the original creditor.

 

Andy

[AndyOrch]

Ring BC...see what they can throw up...its basically to determine whether the claim is statute barred or not..as you cant provide last payment date and its not showing on your CRA,s

 

 

[AndyOrch]

Not due till the 13th August by 4.00pm.

 

With regards to the above...thats the standard template response from Robbers to a section 78 request.....not sure why they keep referring to GDPR and it being free.....section 78 is a completely different legislation under the CCA1974 and the request is not free its still £1.

 

They may think that account is on hold...I assume it is since the day they submitted the court claim...but the court claim is not on hold and the defence must be submitted by the above the stated date....irrespective.

 

Andy

[AndyOrch]

[AndyOrch]

No...inform the mediation team they are in default of your section 78 request and therefore unable to enforce the agreement anyway.

[AndyOrch]

I have had to unapprove your last post and upload....name and address showing throughout the Terms and Conditions....please redact.

 

Andy

[AndyOrch]

It also states the agreement has been varied...hence section 82 (1) CCA1974....cant use a reconstituted version for enforcement if varied....hence no agreement enclosed.

[AndyOrch]

Yes...Notice of Allocation will give you further directions....say it in your witness statement...you have already submitted your defence

[AndyOrch]

For the Claimant...keep an eye on that date and check with the court that they have filed fresh particulars.

 

Andy

[AndyOrch]

But they have suffered a loss.....£275.00  which they paid for the bad debt

[AndyOrch]

Your not at witness statement stage yet ...thats after allocation of the claim.

[AndyOrch]

Quote

Section 3 states that "You must pay the hearing fee to your Home Court. This is the court which normally deals with your case. If
you need to make an application, send it to the Home Court" - I don't quite understand this, does this apply to me or the claimant?

 

The claimant.....as for them paying the hearing fee....its normally paid on account and given that they have complied with the directions its safe to presume it has been paid and they are proceeding.

 

Andy

[AndyOrch]

What date must you file and serve ?

[AndyOrch]

Okay .....I wont be able to run through it until later//or this evening.

[AndyOrch]

Okay.....you need to amend that statement of truth...keep it simply and not refer to contempt of court.

 

Also you need to include the following in your conclusion along with that they are in default of your request and more importantly It also states the agreement has been varied...hence section 82 (1) CCA1974....cant use a reconstituted version for enforcement if varied.

 

 

Andy

[AndyOrch]

Simply informing you.....

 

Non-attendance of parties at a final hearing

27.9

(1) If a party who does not attend a final hearing–

(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,

the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.

(2) If a claimant does not –

(a) attend the hearing; and

(b) give the notice referred to in paragraph (1),

the court may strike out^(GL) the claim.

(3) If –

(a) a defendant does not –

(i) attend the hearing; or

(ii) give the notice referred to in paragraph (1); and

(b) the claimant either –

(i) does attend the hearing; or

(ii) gives the notice referred to in paragraph (1),

the court may decide the claim on the basis of the evidence of the claimant alone.

(4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike out the claim and any defence and counterclaim.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9

 

[AndyOrch]

 

[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

[AndyOrch]

What appeal...source ?

[AndyOrch]

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

[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.

[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