atom vs. Barclaycard - what now?

[atom02]

This thread exists exclusively to assist 'atom02', the individual to whom this moniker refers on this forum in litigation against another party. As such it is almost certainly protected by litigation privilege

 

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I am in some sort of a circus with BC and I hope all you good folks here can help.

 

A few years ago, I was having some difficulties and basically fell into the clutches of a DMC who advised me to make arrangements with a number of creditors. One of them was BC.

 

I sent them an I&E, wrote letters and all went ignored while my phone was ringing off the hook with BC, mercers, optima, etc taking turns - difficult days then and I didn't know such a place as CAG existed!!!

 

Long story short, after much pressure and complaints from me, they accepted monthly payments below what I had been offering and paying for months Anyways, I thought all was good. I went away abroad - continued making payments and only last year discovered they had obtained a CCJ about a year before and after agreeing the payments!!

 

With some help here, applied for a CCA (they sent some t&cs), SAR (no agreement) & tried to claim back charges (they passed the money to "company managing my account" but I have no idea to whom. At this point, I checked my credit files and found they had been updating it with different default amounts on a monthly basis - so I had Defaults of varying sums over about a 10 month period.

 

I decided to contact the court CCBC and was told no particulars were ever received but I was sent the original claim & default judgment - I had not received any of these - so I applied for a set aside .

 

The rest is as they say, is the history I have recounted on the other thread .

 

I hope this background helps without overwhelming anyone following the story...

 

All help appreciated

Edited October 2, 2010 by silverfox1961
Added bit in red as requested

[atom02]

deleted

Edited September 23, 2010 by atom02
duplicate post

[atom02]

So to bridge the discussion from other thread - my concern came when they claimed they didn't receive any notices of the set aside hearing (3 in total) so failed to attend. The CCJ was set aside so I served a 31.14 along with giving notice of the order. When they failed to comply, I applied for a strike out and then they filed an application with all the bumf about not knowing about the hearing and not having to comply with s78 and requesting a re-listing (under cpr 23.10!! ) - this has now been set, while my own application to strike out had been received but not yet 'actioned' in the mean time. The court has advised me though that the DJ will hear both at the same time.

 

Obviously, I am worried about the unfamiliar arguments they are putting forward...

 

atom

[slick132]

HI Atom,

 

Have BC responded to your CPR 31.14 request.

 

If so, what have they supplied.

 

Post up the credit agreement if they've supplied it.

 

8-)

[Bigdebtor]

Did BC know of your change of address when you went abroad? Any proof if so?

 

BD

[foolishgirl]

atom, can you post up the original POC please? (minus personal details)

 

Have they supplied a copy of your agreement? If so, can you post that up too?

 

What did you ask for in your CPR31.14 & have they sent anything?

[atom02]

HI Atom,

 

Have BC responded to your CPR 31.14 request.

 

If so, what have they supplied.

 

Post up the credit agreement if they've supplied it.

 

8-)

 

Hi Slick,

 

Thanks for looking in on me again...Sorry for the delay in replying.

 

In answer to your question, no - they haven''t responded to the 31.14 request. Instead they have just spent the last 2 months trying to undo the set aside & have ignored the request. I already applied to strike out (without a hearing) after giving the 7 days plus a further week of grace to reply and they failed. But now the DJ is going to hear their application to oppose & mine to strike out. I don't want to be complacent that this is simply because they have asked for a hearing.

 

Here is a copy of the 2 agreements: pages 1-3 is the one provided by the solicitor and pages 4-6 is the one I got through the s.78 request. They are both the same except for the additional information bolted onto each reconn in that page 3 had my name and address on it plus the cancx notice, whereas page 6 had what looks like it was simply pulled out of a ring binder. Neither is very clear but I think just legible enough...

 

Any thoughts?

 

atom

Agreements.pdf

Edited September 26, 2010 by atom02

[atom02]

Did BC know of your change of address when you went abroad? Any proof if so?

 

BD

 

Hi BigD,

 

Thanks for looking in.

 

I do not know for certain whether they knew. I didn't inform them because I re-directed my mail and also had an agreed arrangement in place so didn't expect there to be any problems - probably naive on my part, I think.

 

atom

Edited September 26, 2010 by atom02

[atom02]

atom, can you post up the original POC please? (minus personal details)

 

Have they supplied a copy of your agreement? If so, can you post that up too?

 

What did you ask for in your CPR31.14 & have they sent anything?

 

Hi again, FG,

 

Sorry for not responding sooner. To your questions:

 

Here is the text of the POC: "the claimant's claim is in respect of a regulated credit agreement regulated by the CCA 1974 whereby the claimant provided the defendant with a credit card & in return the defendant agreed to pay at least the minimum payment given in the statement. A DN was served on the defendant on xx/xx/xxxx. The Defendant has failed to comply with this. The claimant's claim of £xxxxx.xx [is:jaw: so I think they will want to see some blood here] is the sum owed plus accrued interest as at xx/xx/xxxx [same date as above]. Demand for payment has been made however the sum due remains outstanding" - so far, they have not disclosed any DN of the date on the claim so i think this is an error [do you think this is material?]

 

Agreement: posted two posts above.

 

31.14 request: (1) the regulated agreement (using a slightly adapted x20's template letter in his cpr 31.14 thread); (2) default notice & (3) an actual accrual statement showing how the total sums demanded came to be - I know the sums are wrong at least because there some penalty charges which are not that high (c.£500, without interest) because I had never actually failed to pay until the few months during which i was having difficulties.

 

I hope these answer your questions somewhat.

 

Thanks,

 

atom

Edited September 26, 2010 by atom02

[foolishgirl]

Well these pages in no way constitute an agreement - they are T&Cs with (presumably) your name & address entered in the cancellation box!!

 

It doesn't even fulfil a S78 request as a recon.

 

This should be thrown straight out of court but it's more probable that BC will be given more time to produce an agreement compliant with CCA1974.

 

Can you also answer the following:

1. What date is the hearing?

2. What were the grounds you put forward for SO?

3. When did you make the CPR31.14 request?

4. Have you ever sent a SAR?

 

In order for BC to prove their case they will need to provide

1. an enforceable agreement

2. a valid DN & proof of posting

3. proof of the sum they are claiming

And in order for you to contest it you will also need the above copies.

 

IMO you are quite right in your assumption that they may treat the hearing like a mini-trial & you must be ready with as much documentation, knowledge of the CCA that you can provide.

 

So far, you have followed the correct procedure in making a CPR31.14 request with which they have not complied so you need to ask the court to make an order. Rather than waiting for the SO/SA hearing & asking for directions, I would prempt this by submitting another app for disclosure under CPR31.15 immediately (providing you have time before the scheduled hearing)

 

Come back with answers to the above & let's see if you can move this forward...

[atom02]

Well these pages in no way constitute an agreement - they are T&Cs with (presumably) your name & address entered in the cancellation box!!

 

It doesn't even fulfil a S78 request as a recon. So I thought, only they are telling me it contains all the PTs so they don't see how I can possibly defend .

 

This should be thrown straight out of court [one would hope so] but it's more probable that BC will be given more time to produce an agreement compliant with CCA1974. By the Dec hearing, they would have had 6mths! Surely, wherever they buried it they should be able to burrow so far by then?

 

Can you also answer the following: Sure, in blue text:

1. What date is the hearing? December 23 - hopefully, they won't bother to show up.

2. What were the grounds you put forward for SO? failure to comply both with 31.14 request for all docs referred to in POC & also failure to comply with court order to respond to issues raised in set aside application in relation to failure to disclose docs pursuant to SAR (just used the template but made it clear to the DJ that no agreement was forthcoming even to the SAR & s.78

3. When did you make the CPR31.14 request? mid july - which was as soon as the court had typed up & served the order from SA hearing

4. Have you ever sent a SAR? I did but no agreement (so highlighted this in my SA application)

 

IMO you are quite right in your assumption that they may treat the hearing like a mini-trial & you must be ready with as much documentation, knowledge of the CCA that you can provide. Especially because instead of making an order under the 31.14 application, the court has now held off to hear both applications in December. I actually stated in the draft order that they have another 14 days to comply with request, failing which they should be struck out. I think CC was just about to grant this when BC's application contesting the SA got filed.

 

So far, you have followed the correct procedure in making a CPR31.14 request with which they have not complied so you need to ask the court to make an order. [Already did, but now on hold...] Rather than waiting for the SO/SA hearing & asking for directions, I would prempt this by submitting another app for disclosure under CPR31.15 immediately (providing you have time before the scheduled hearing): I have plenty of time - how should I do this? I haven't come across an application under 31.15 before.

 

Come back with answers to the above & let's see if you can move this forward...

 

Thank you FG for the pointers - all answers are in blue text. Please let me know if you need me to clarify anything.

 

atom

Edited September 26, 2010 by atom02

[paulwlton]

What year was the agreement taken out?

[foolishgirl]

Thanks for all that info atom, helps to understand the series of events.

 

So, my thoughts FWIW:

 

You say a court order was made to produce docs in relation to set aside issues.

 

& also failure to comply with court order to respond to issues raised in set aside application in relation to failure to disclose docs pursuant to SAR

 

I am slightly confused here as the SA was granted (albeit BC are now opposing it) so why would the court have made an order? And if so, at what stage? Before the SA hearing?

 

Is it possible for you to post that order or copy it onto your thread please?

 

And if it was made prior to the SA are BC saying now that they didn't receive that order aswell as the SA notice of hearing???? Sounds a bit unlikely doesn't it?

 

The fact that they haven't produced an agreement with your SAR aswell as under your S78 request would seem to indicate they haven't got one. These T&Cs are rubbish & they must know that so why are they pursuing opposition to a SA? (hmm.. maybe I've answered myself here). The whole thing should be dismissed although I suspect the most you can realistically hope for is confirmation of the SA & a retrial.

 

I suspect they will try & show that you were aware of the original hearing & therefore the judgment shouldn't be set aside. Of course, you could point out that they should have been aware of the SA hearing but they now claim they didn't receive any paperwork. Sauce for the goose methinks...

 

However to ensure your case is solid, what sort of evidence have you got to demonstrate incontrovertibally that you were out of the UK? eg. How long were you away? Did you have mail rerouted? If it was business, can you get a letter from your employer stating the dates etc? If it was pleasure can you get copies of the airline tickets or invoices?

 

(BTW CPR31.15 is used in conjunction with CPR31.14 but as this is all up for grabs at the hearing, it's doesn't apply to you now)

[atom02]

What year was the agreement taken out?

 

Hi Paul, it was taken out in 1996.

 

atom

[atom02]

Thanks for all that info atom, helps to understand the series of events.

 

It seems I have also confused you a little...

 

I am slightly confused here as the SA was granted (albeit BC are now opposing it) so why would the court have made an order? And if so, at what stage? Before the SA hearing? Order was made at the same time. Def judgment set aside; BC to reply properly to SAR & s.78 requests [by date]; atom to file defence [by date] only if BC complies with order to provide docs/reply properly to said requests. Sorry, i don't remember the actual dates as docs not with me but both the date and deadline to comply with my subsequent 31.14 request passed and they sent nothing. Does this clarify it - seems I am skipping bits of the detail.

 

Is it possible for you to post that order or copy it onto your thread please? sure - I can post, as soon as I get back to where my scanner is.

 

And if it was made prior to the SA are BC saying now that they didn't receive that order aswell as the SA notice of hearing???? Sounds a bit unlikely doesn't it? Both!!. They say they didn't get the notice of hearing and got the notice of order too late - just before the court deadline to comply. I actually sent a copy to them recorded del (as soon as I got the court copy) to explain why I was making the 31.14.

 

The fact that they haven't produced an agreement with your SAR aswell as under your S78 request would seem to indicate they haven't got one. These T&Cs are rubbish & they must know that so why are they pursuing opposition to a SA? (hmm.. maybe I've answered myself here). The whole thing should be dismissed although I suspect the most you can realistically hope for is confirmation of the SA & a retrial. They reckon I have no prospects of successfully defending - as if!!! - I think they mean they haven't!!!!

 

I suspect they will try & show that you were aware of the original hearing & therefore the judgment shouldn't be set aside. Of course, you could point out that they should have been aware of the SA hearing but they now claim they didn't receive any paperwork. Sauce for the goose methinks... Strangely enough, they have not even addressed this so I suspect they knew I wasn't here but I have plenty of proof to show I wasn't (actually the DJ asked me in the SA hearing)

 

However to ensure your case is solid, what sort of evidence have you got to demonstrate incontrovertibally that you were out of the UK? eg. How long were you away? Did you have mail rerouted? If it was business, can you get a letter from your employer stating the dates etc? If it was pleasure can you get copies of the airline tickets or invoices?

 

(BTW CPR31.15 is used in conjunction with CPR31.14 but as this is all up for grabs at the hearing, it's doesn't apply to you now)

I did tell them I would meet their reasonable copying costs in the 31.14.

 

I hope the above clarifies it a bit.

 

atom

[foolishgirl]

They really do not seem to have a leg to stand on do they? I think that maybe they are not so much opposing the set aside as the strike out & are hoping that by kicking off about the SA they will at least get the SO out of the frame, giving them another bite at the cherry. If that's the case, IMO as long as you present a cast iron case for the SA to stand, it is more than likely they will get a retrial regardless of having ignored CPR31.14 requests & court orders.

 

IMO your response to their pleadings should be simply 'have you brought an enforceable agreement & default notice to show the court today?' If they haven't, point them to S60/61 of the CCA1974 (not to mention S127), ask them why they couldn't produce a copy under S78 or SAR & why they think a further extension order from the court will enable them to find one. Remind them & the court that whilst they are in breach of S78, no enforcement action can be taken & until they produce a compliant agreement, the case has cannot proceed & the court should throw it out now. Make sure you know the CCA backwards, print a copy out to take to court with you.

 

They will probably try to bring Carey into the argument so make sure you know it well (again print a copy off & highlight the relevant bits) Whilst a recon may be accepatble under S78, it is not acceptable in court as evidence of an enforceable agreement plus the docs they have produced are not even close to a reconstruction of a BC agreement. Look on the BC forum & drag off a couple of egs to take with you.

 

Even if they get a retrial you really shouldn't have much problem seeing them off eventually if this is all the evidence they can produce. Just make sure you keep a record of all your costs, including these proceedings so you can slap them with a big bill at the end of it all.

[atom02]

FG,

 

thanks for the advice given thus far - very helpful.

 

Sorry for the tardy posts, am almost burning the candle on both ends here but I have some time before the hearing so I'll get my skates on!

 

Now to your point on sample reconn BC agreements, I thought this thread is on the BC forum - no? I can't seem able to find any sample agreements. Will be grateful if you or anyone else reading can point me in the right direction.

 

Do you think it would be possible to counterclaim for the penalty charges and nasty CRA updates at this point or should I just focus on ensuring the SA remains as is?

 

Thanks,

 

atom.

[foolishgirl]

 

I thought this thread is on the BC forum - no? I can't seem able to find any sample agreements.

 

It's on the right forum, now got my specs on!

 

If you search in the threads, you may be able to find where someone has attached a copy of their agreement that you may be able to use as an eg.

Do you think it would be possible to counterclaim for the penalty charges and nasty CRA updates at this point or should I just focus on ensuring the SA remains as is?

 

You can't put a counterclaim in until you submit a defence & you can't do that until you get your SA confirmed.

 

 

FG

[atom02]

Thanks, FG. Your help is appreciated.

 

I'll keep this post updated if anything develops.

 

atom

[atom02]

I have an update on this as I have just received a consent order from the other side's solicitors which they want me to sign or explain on what basis I am going to defend... is this normal? Essentially the consent order is to agree to SA my own SA and allow the def. judgment to stand! And of course, no costs to either party

 

Basically, their letter says even though they didn't have to provide it because there was already a ccj, they have now supplied the reconn s.78 agreement ala. Waksman and that they do not believe I can successfully defend because the agreement [ehhmmm Ts & Cs!!] was enforeceable anyway.

 

I guess i should reply to this but am not entirely certain how. For a start, they are completely ignoring the 31.14 request which is valid since the DJ SA the original def. judgment.

 

Please any advice what I should do now?

 

Thanks,

 

atom

[foolishgirl]

Ignore! Cheeky beggars!!!

[atom02]

Thanks, FG - I shall do just that and sit tight.

 

Your help has been invaluable and you are an

 

atom

[Turnaround]

Hi,

 

Subbing.

 

I am intrigued by your edit in red on your first post, and noticed similar comments on at least one other.

 

Would you be kind enough to explain the reason/need for this, is it due to the guest’s?

 

........I wonder

 

Regards….Turnaround

Edited October 6, 2010 by Turnaround
typo

[atom02]

Hi Turnaround,

 

Yes, 'guests' and at least some well learned folk who like to try to surprise their opponents by digging out or lifting scripts attributed to them from CAG or other websites. At least, if they try, they will be well informed in advance that they are breaching litigation privilege and copyright rules.

 

atom

[Bigdebtor]

Atom

 

Great idea on your first post! Does anyone know if it has full legal standing - or would it be up to an individual judge to ruleon whether to hear any of the contents?

 

Of course it will never stop the other side knowing what your thoughts are - and what advice you have been given - unless sent by pm - but still a great idea.