Link barclaycard claim stayed since oct 2014 & kearns sols***Claim Discontinued***

[b4nkers]

Hi all,

I received the above Court that received my defence (back in November 2014).

 

. The Court acknowledgement letter goes on to state

'Where he wishes to proceed, the claimaint must contact the Court within 28 days after receiving a copy of your defence.

After that period has elapsed, the claim will be stayed' .

 

I never heard anything else so assumed all was well and the claim was stayed.

 

Today (10 months later) I received a letter from a solicitors practice saying

'Our client link financial outsourcing...has instructed us to act for the Claimant...

The appropriate notification has been submitted to the County Court.

 

My questions are:

 

Could they have responded to the defence within 28 days but I don't get to hear anything until now?

Could the stay have been overturned without my knowledge?

or are they trying their luck?

 

Is there a way I can find out from the Courts directly if they did respond to the defence?

 

Thanks in advance

 

B4nkers

[shamrocker]

They can lift the stay at any time - I think there is a fee involved for them.

 

The only response to your defence can be to proceed with the claim to allocation stage. Just wait and see what happens. In the meantime, do some reading and get your head around how best to handle claim should they proceed.

 

Can you post up the particulars of the claim?

[AndyOrch]

Its only a change of Solicitor notification (as required by CPR 42)...it does not mean the claim is proceeding or the stay has been lifted.

 

Regards

 

Andy

[dx100uk]

can you fill this out please

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

if link have the debt

 

I bet there something wrong with it too.

 

dx

[b4nkers]

Hi

 

To bring you upto date with this post.

 

A few years ago I naively and stupidly used a firm called Highbridge

who alleged that certain credit card contracts could be legally challenged in a court of law

 

if they were taken out prior 2007 and could be deemed to be an unfair contracts if they had increased your credit limit without asking etc.

 

At the time I had a lot of credit card debt and was struggling to meet make ends meet

 

I signed up to this company called Highbridge (based in Guernsey) and paid them a fee.

 

They promised to defend any claim from the credit card company if it was ever challenged.

 

Essentially in 2014 Highbridge went into liquidation and were unable to represent me.

 

I know I was very stupid and I regret using them from the outset. Hindsight is a wonderful thing.

 

One of the credit card companies (represented by IDR Finance UK II) are pursuing me.

 

The original amount being claimed for was £8000 (rounded) - and the particlulars of the claim are noted below.

 

(This was 16th Oct 2014).

 

The Claimant claims me whole of the outstanding balance due and payable under an agreement referenced xxxxxxxxxxxxxxxx

and opened effective from 13/09/2004.

 

The agreement is regulated by the Consumer Credit Act 1974, was signed by the Defendant and from which credit was extended to the Defendant.

 

The Defendant failed to make payment as required and by 27/11/2013 a default was recorded.

 

As at 15/11/2013 the Defendant owed Barclaycard pic the sum of £7400.

 

By an agreement in writing the benefit of the debt has been legally assigned to the Claimant effective 15/11/2013 and made regular upon the Claimant serving a Notice of Assignment upon the Defendant shortly thereafter.

 

And the Claimant claims:

-1. 7,500

2. Interest pursuant to Section 69 County Court Act (1984) at a rate of 8 % per Annum from 15/11/2013 to 16/10/2014 of 500

And thereafter at a daily rate of 1.57 to date of judgment or sooner payment.

Date 16/10/2014

 

Just before Highbridge went into liquidation, the follow defence was sent (drafted by Highbridge)

 

1. The Defendant will allege and aver that the Claimant has failed to comply in part or at all with the Pre-Action procedure guidelines as per the guidance contained within the CPR;

 

2. The Defendant is unable to sufficiently respond to the Claim, as the Claim has not been properly particularised.

The Claim, as currently drafted, has no realistic prospects of success and/or discloses no recognisable cause of action.

 

3. In addition, the Claimant has failed to disclose documents referred to in support of the claim including but not limited to the following:

i) A true copy of the signed agreement;

ii) Where the agreement has been varied either:

a) a copy of the latest variation given in accordance with section 82(1) of the of the Consumer Credit Act 1974 relating to each discrete term of the agreement which has been varied, or

b) a clear statement of the terms of the agreement as varied in accordance with section 82 (1) of the Consumer Credit Act 1974.

 

4. The Defendant denies that she is liable to the Claimant either as alleged in the details of the claim or at ail;

 

5. The Defendant denies that the sum owing, as pleaded in the details of claim, is owed and the Claimant is put to strict proof thereof;

 

6. The Defendant reserves the right to apply to amend her defence following proper service of the documents detailed above and a revised fully pleaded Particulars of Claim;

 

7. The Defendant does not admit that the original agreement ("the agreement") has been properly executed.

 

The Defendant will maintain that as a result of this the Claimant is not entitled to enforce it.

 

The Defendant will aver that this renders the agreement irredeemably unenforceable;

 

8. The Defendant will allege that the Claimant has failed to comply with the Defendants requests pursuant to section 78 of the Consumer Credit Act 1974 and as a result cannot attempt any enforcement, nor ask the Court for any enforcement order in the meantime;

 

9. The Defendant denies the failure to maintain the contractual payments and requests that the Claimant discloses true copies of any Default Notices served (and proof of service), pursuant to Section 87 of the Consumer Credit Act 1974 and as referred to in the Particulars of Claim;

 

10. The Defendant will aver that the Claimant is not entitled to Judgment in the sum requested or at all.

 

Part 20 Counter Claim

1. The Defendant repeats paragraphs 1-10 of her Defence.

 

2. For all of the reasons contained within the Defence, the Defendant will seek, if appropriate, damages against the Claimant on the basis of an unfair relationship subject to a maximum value of £1,000.00;

 

3. The Defendant will assert that the burden and nature of the agreement has caused the defendant to suffer increased and unnecessary levels of worry and anxiety, subject to a maximum value of £1,000.00;

 

4. The Defendant will seek from the Claimant damages, to be assessed by the Court and limited to a maximum value of £1,000.00 for the emotional strain and upset of having to deal with the account together with, if appropriate a declaration of irredeemable unenforceability.

 

5. The Defendant will seek, if appropriate, both costs and interest at a rate to be determined by the Court

 

Statement of Truth

I believe, to the best of my knowledge, that the facts stated in this Defence are true.

Dated this day the NOVEMBER 2014

 

I received an acknowledgement of defence letter from the Courts and never heard anything else since

 

very recently when I received the following letter within the last week (22 Oct 2015) from Kearns Solicitors on behalf of IDR Finance UK II Ltd

 

We write further to our recent letter wherein we confirmed that we had been instructed to act on behalf of the Claimant in this matter.

 

We are instructed that proceedings have been stayed as a result of Highbridge Investments LP filing a defence to the claim.

 

It appears that you may be of the misguided belief that Highbridge have taken legal ownership of your debt and as such are able to file a defence to the claim.

 

It is a simple fact of law that a debt cannot be sold or transferred to a third party without the lenders permission.

 

No permission has been sought or granted to enable the transfer of me debt to Highbridge.

 

It is clear that the defence has been prepared/filed by Highbridge and as such is not admissible.

 

Furthermore the defence is a generic template defence and counterclaim that Highbridge appear to file on cases as a matter of course.

 

You remain liable for the claim as pleaded in the summons and as such we are instructed to apply to lift the stay and restore the proceedings

 

however, we will delay the application for 14 days to allow you to contact us to discuss the possibility of resolution without the necessity of a trial.

 

If you wish to discuss, please contact the address at the top of the page or alternatively speak to a Litigation Officer on 02920 808668 who will be happy to assist you. We are open between 8 am and 8:30 pm Monday to Thursday, to 5pm on Friday.

 

I'm unsure what I should do. I don't have the £8k they seek.

 

Since 2007 Highbridge advised not to acknowledge any of the correspondence from the original credit card company or any debt collection agencies which I have maintained.

 

I know full well I've been foolish and let down by Highbridge but would appreciate any advice or pointers in the right direction.

 

Thanks for reading this long post!

[dx100uk]

Willy waving

 

Until they Pay the fee and lift the stay

But they are going nowhere without a signed agreement

[b4nkers]

Hi

 

- many thanks for your response, so ultimately without them being able to produce a copy of the signed agreement it would be difficult for them to enforce?

 

Other than swot up on legal proceedings which I'm currently doing is there anything else you think might be relevant to the case?

 

Many thanks

 

B

[dx100uk]

Pers I wouldn't sweat about plink too much

 

What was the org debt about/who with

And date it was taken out

[b4nkers]

Original debt was with Barclaycard, and the account was opened Sept 2004. Debt has been passed to several collection agencies- now passed to Kearns solicitors.

[b4nkers]

Hi all

 

Hope you can help, with the latest update. I've now received a letter from the County Court Northhampton.

 

Before District Judge Murray Smith sitting at the County Court Business Centre, .....Northampton

 

Letter is dated: 24th March 2016 (but I've only received it today 31st March 2016)

 

Letter says: The Court will deal with the application to lift the stay without hearing under CPR 23.8 ©

 

It is ordered that:

 

The application to lift the stay and for direction questionnaires to be issued is granted.

 

 

Note: this order has been made without a hearing under the Court's case management powers contained in the Civil Procedures rules Part 3. You may within 7 days of the service of this order apply to the Court to set aside or vary the order under Part 23 Rule 10. You must file with the Court, and serve on the other parties an application that sets out your reasons for objection. A fee is payable upon the filing of the application. When you objection is received the matter will be listed for hearing unless you ask the Court to vary the order without a hearing.

 

 

 

Page 2 goes on to say:

TAKE NOTICE THAT

 

1) This is now a defended claim

A copy of the defence has already been sent to you by the defendant

 

2) It appears that this case is suitable for allocation to the smalll claims track

If you believe that this track is not appropriate track for the claim, you must complete box C1 on the Small Claims Directions Questionnaire (from N180) and explain why.

 

3) You must by 11 April 2016 complete the Small Claims Directions Questionnaire form (N180) and file with the Court Office (Nothampton address) and serve copies to all other parties.

 

 

Suddenly I'm feeling very anxiious- any help or pointers gratefully appreciated

 

Thanks in advance

 

Ben

[AndyOrch]

can you fill this out please

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

 

if link have the debt

 

I bet there something wrong with it too.

 

dx

 

You need to complete the above link Ben as requested last September..then we can advise on the debt and returning the DQ.

 

Regards

 

Andy

[b4nkers]

Name of the Claimant IDR Finance UK Limited

Date of issue – 24th March 2016 (Application to lift the stay)

What is the claim for – .

 

Particulars of Claim:

 

1.The Claimant claims me whole of the outstanding balance due and payable under an agreement referenced xxxxxxxxxxxxxxxx

and opened effective from 13/09/2004.

The agreement is regulated by the consumer credit Act 1974,

was signed by the Defendant and from which credit was extended to the Defendant.

 

2.The Defendant failed to make payment as required and by 27/11/2013 a default was recorded.

 

3.As at 15/11/2013 the Defendant owed Barclaycard pic the sum of £7400.

 

4.By an agreement in writing the benefit of the debt has been legally assigned to the Claimant effective 15/11/2013

and made regular upon the Claimant serving a Notice of Assignment upon the Defendant shortly thereafter.

 

5.And the Claimant claims:

-1. 7,500

2. Interest pursuant to Section 69 county courticon Act (1984) at a rate of 8 % per Annum from 15/11/2013 to 16/10/2014 of 500

And thereafter at a daily rate of 1.57 to date of judgment or sooner payment.

 

What is the value of the claim? now approx £9k

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Credit card

When did you enter into the original agreement before

or after 2007? Before 2007 - Account was opened: 13/09/2004

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. IDR Finance UK II Limited.

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? Yes

Did you receive a Default Notice from the original creditor? Yes

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Yes

Why did you cease payments? March 2013

What was the date of your last payment? March 2013

Was there a dispute with the original creditor that remains unresolved?

No - The account defaulted as I was over-indebted

- I used a company called Highbridge LLP who said they could assign the debt to themselves

and would be able to represent me legally etc.

They went into administration in 2014 and at the time suggested seek legal advice.

Highbridge in 2013 advised not to make any further payments.

[dx100uk]

previous defence filed to the original claimform:

 

 

Just before Highbridge went into liquidation, the follow defence was sent (drafted by Highbridge)

 

1. The Defendant will allege and aver that the Claimant has failed to comply in part or at all with the Pre-Action procedure guidelines as per the guidance contained within the CPR;

 

2. The Defendant is unable to sufficiently respond to the Claim, as the Claim has not been properly particularised.

The Claim, as currently drafted, has no realistic prospects of success and/or discloses no recognisable cause of action.

 

3. In addition, the Claimant has failed to disclose documents referred to in support of the claim including but not limited to the following:

i) A true copy of the signed agreement;

ii) Where the agreement has been varied either:

a) a copy of the latest variation given in accordance with section 82(1) of the of the Consumer Credit Act 1974 relating to each discrete term of the agreement which has been varied, or

b) a clear statement of the terms of the agreement as varied in accordance with section 82 (1) of the Consumer Credit Act 1974.

 

4. The Defendant denies that she is liable to the Claimant either as alleged in the details of the claim or at ail;

 

5. The Defendant denies that the sum owing, as pleaded in the details of claim, is owed and the Claimant is put to strict proof thereof;

 

6. The Defendant reserves the right to apply to amend her defence following proper service of the documents detailed above and a revised fully pleaded Particulars of Claim;

 

7. The Defendant does not admit that the original agreement ("the agreement") has been properly executed.

 

The Defendant will maintain that as a result of this the Claimant is not entitled to enforce it.

 

The Defendant will aver that this renders the agreement irredeemably unenforceable;

 

8. The Defendant will allege that the Claimant has failed to comply with the Defendants requests pursuant to section 78 of the Consumer Credit Act 1974 and as a result cannot attempt any enforcement, nor ask the Court for any enforcement order in the meantime;

 

9. The Defendant denies the failure to maintain the contractual payments and requests that the Claimant discloses true copies of any Default Notices served (and proof of service), pursuant to Section 87 of the Consumer Credit Act 1974 and as referred to in the Particulars of Claim;

 

10. The Defendant will aver that the Claimant is not entitled to Judgment in the sum requested or at all.

 

Part 20 Counter Claim

1. The Defendant repeats paragraphs 1-10 of her Defence.

 

2. For all of the reasons contained within the Defence, the Defendant will seek, if appropriate, damages against the Claimant on the basis of an unfair relationship subject to a maximum value of £1,000.00;

 

3. The Defendant will assert that the burden and nature of the agreement has caused the defendant to suffer increased and unnecessary levels of worry and anxiety, subject to a maximum value of £1,000.00;

 

4. The Defendant will seek from the Claimant damages, to be assessed by the Court and limited to a maximum value of £1,000.00 for the emotional strain and upset of having to deal with the account together with, if appropriate a declaration of irredeemable unenforceability.

 

5. The Defendant will seek, if appropriate, both costs and interest at a rate to be determined by the Court

 

Statement of Truth

I believe, to the best of my knowledge, that the facts stated in this Defence are true.

Dated this day the NOVEMBER 2014

 

I received an acknowledgement of defence letter from the Courts and never heard anything else since

[b4nkers]

I've attached a copy of the latest Court correspondence regarding the lifting of the stay.

 

It says I must complete the small claims questionnaire (N180) by 11 April .

 

Thanks

 

Ben

Lift the stay without hearing 24032016.pdf

[dx100uk]

yes to mediation

Yes to Small Claims Track

the rest is obvious

[b4nkers]

Thank you Dx appreciate your help.

 

I'll complete the forms and send them back opting for the Mediation option.

 

Do you know how soon the Courts will get back to me- as I'm going to swot up on everything.

 

The credit card was originally taken out in Sept 2004 - they were previously unable to produce a signed copy of the agreement.

 

Will I still be able to use this as defence at mediation stage?

 

Do you think it pays off to have someone represent me at mediation stage?

 

Difficult question to answer I know.

 

Thanks in advance

 

Ben

[dx100uk]

as a side issue

you have sent plink a CCA request since the claim was issued?

[mercyblue]

From your defence provided by Highbridge.

7. The Defendant does not admit that the original agreement ("the agreement") has been properly executed.

 

The Defendant will maintain that as a result of this the Claimant is not entitled to enforce it.

 

The Defendant will aver that this renders the agreement irredeemably unenforceable;

 

Is this correct because I am assuming that the "defence" provided for you would be exactly the same that Highbridge would have provided for anybody they "helped" at least that's how it reads to me.

[b4nkers]

Hi Mercyblue

 

Yes I believe a generic defence was used by Highbridge.

 

Can you clarify what the significance of this is

-though I note this is noted in a letter from Kearns solicitors intention to lift the stay.

 

Dx100uk- No - a further CCA has not been requested from plink or Kearns solicitors.

It was originally requested in the initial letter to Barclaycard.

 

If it helps I've included a time line of events and correspondence received and sent.

docs1.pdf

Edited April 1, 2016 by dx100uk
multiple docs1 merged to one file -dx

[dx100uk]

should have been the first thing you did - CCA request.

pers i'd do one in the morning

cant hurt.

 

mediation will arrange a call with you

they will ask various questions

 

one will be have you been sent all the paperwork to enable you to defend the claim etcetc

 

ans will be no

mediation will fail.

 

get that CCA request running to the claimant.

[mercyblue]

Yes I believe a generic defence was used by Highbridge.

 

Can you clarify what the significance of this is

-though I note this is noted in a letter from Kearns solicitors intention to lift the stay.

 

Its significant because it lays you wide open to an application for summary judgement.

I'd put in the application that its generic then use that paragraph 7

(which is an absolute defence i.e yes there was an agreement but its unenforceable)

to say the defendant claims the agreement is unenforceable but fails to state why,

then ask for your defence be stuck out and summary judgement entered for the claimant.

I'd include a copy of that doc you posted above which appears to satisfy all the cca requirements

(in any case they could produce any old recon agreement and say it satisfies s78 requirements and still put the onus onto you.)

That makes you produce a credible reason for that claim of an unenforceable agreement at the hearing

or in your witness statement.

Rather than helping you Highbridge more likely have left you high and dry, a

t least if they have gone bust they can't do it to anyone else not that, that helps you at all.

[dx100uk]

The credit card was originally taken out in Sept 2004

- recon wont wash

[mercyblue]

The credit card was originally taken out in Sept 2004

- recon wont wash

 

Yes it will why do you persist with this myth? If you wish to point me as to why it doesn't ? I did post in another thread about why this is a myth nobody responded to it (which happened to link to a top solicitor on the subject) . Please don't say the cca amendments 2006 I know what that changed and its nothing to do with recon agreements.

 

But that doesn't even matter in this case anyway you don't really need any cca at all. That defence claims there was a improperly executed agreement which has nothing to do with cca requests - an s78 failure does not render an agreement irrevocably unenforceable. So what its saying is whatever is provided it's still unenforceable so you have sort have trumped yourself.

You cant really say an agreement is irrevocably unenforceable then try and rely on the fact that the other side can't provide any agreement, so what if they can provide one or not because anything they could provide wouldn't matter its still unenforceable.

 

The simple fact is if it gets to court your going to get asked "you claim this agreement is irrevocably unenforceable why?"

That's the question the op needs to think about unfortunately

Edited April 2, 2016 by mercyblue
add extra text

[AndyOrch]

I would be more concerned with the Part 20 counterclaim attached to the defence...and try to redact it in some way.

[mercyblue]

Well there is that Andy. I don't see how you could redact it? Wouldn't you need to discontinue it under part 38?