HPH2/Cohen Claim Form barclaycard 'debt'***Settled by Tomlin Order***

[isbo]

Everything they sent has been posted up (durh except that barmy page that was stapled back to front for some daft reason). When do I need to submit another WS? I know sham, it's just so utterly frustrating when you're against The Man.

[shamrocker]

Everything they sent has been posted up (durh except that barmy page that was stapled back to front for some daft reason). When do I need to submit another WS? I know sham, it's just so utterly frustrating when you're against The Man.

 

What's the date of the hearing isbo?

[isbo]

Two week's today shamrocker.

[shamrocker]

Two week's today shamrocker.

 

Ok, so you'd probably be best to get something drafted up soon. A lot of points have already been made above with regards their WS, so you could start compiling a list of the weaknesses. Ideally, you should respond directly to the points they make within their WS. One big one for me is their reference to Carey re s.78 request - complying with s.78 is one thing, but a recon isn't CCA compliant.

 

To be honest, my approach here would be simply to create some obstructions for them and see where it gets you. It's already been mentioned above that they haven't evidenced the commencement date of the agreement. This can have a big impact on the whole direction of the claim - pre-April 2007 versus post-April 2007, so it may be worth giving this a mention within your new WS.

 

I'd need to take a further look over their WS in order to comment further but I'm struggling for time today - maybe tonight.

[isbo]

OK thank you, very grateful for your help.

[Ford]

Christ on a bike, sounds like I need a solicitor.

[isbo]

Well, thoughts then folks please?

[shamrocker]

Put together a Supplementary Witness Statement in response to their WS. Then it would be up to you whether to proceed to court on the strength of it, or use it's nuisance effect to negotiate some form of settlement before court.

 

The points I would make in the WS....

 

- Challenge their para 3. - possibly accept that an agreement was entered into with Barclays etc. but deny that it was entered into in 2008. Your recollection is that the relationship with Barclays commenced in 2006, and whilst you have no existing documents available to you support this, the Claimant is put to strict proof to evidence the commencement date. The date being significant because the powers of the court to enforce improperly executed regulated agreements changed in April 2007.

 

Challenge the agreement - The recon exhibit isn't included in your upload? Therefore, I can't see what's there and what's not, however, you can challenge it on the basis that it is in breach of s.61 of the CCA - Signing of the agreement, as it does not contain a signature for the debtor and creditor. Therefore, it is improperly executed. s.65 of CCA states "An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only." but the Court's discretion to determine the enforceability of pre-April 2007 agreements is removed by virtue of s.127(3).

 

- Challenge their assertion in para. 4 that a recon agreement is rendered enforceable as a consequence of Carey v HSBC. This case applies to how a creditor can satisfy their duty under the CCA 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 recon (which is effectively an improperly executed agreement) could only be enforced at the discretion of the Court, but this discretion only exists for post-April 2007 agreements. 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.

 

- The Default Notice isn't included in your upload - do you have it?

- The Notice of Assigment - not included in your upload - do you have it?

- They've added statutory interest to the defaulted account amount - challenge this too, as it can only be awarded at the discretion of the court.....but I'd certainly be knocking this off should you try to negotiate a settlement.

 

If you decide to have a go at the WS, you'll need to write it out properly and support it with the appropriate references to CCA, Carey, etc...plus exhibits.

 

Sham

Edited October 3, 2016 by honeybee13
Paras.

[jackreacher]

Just confirming what Sham is saying where are the actual exhibits they seem to be just blank pages. Please check on the reverse etc. If they have just sent blank pages it just adds to your defence of no Original documents as per paragraph 6 of the orders.

 

You do need to Write a brief witness statement with the points sham has raised but make sure you ask them for the original Documents as per the judges orders.

 

You could just reword Shams points to sound like you are writing them.

 

Do it today.. paste it up for it to be checked and added to. People are here to help but you need to start working and learning.

[isbo]

jackreacher I'm grateful for your response but I'm afraid I must take issue with your final line.

 

I have spent ages on this claim and that remark is uncalled for and below the belt.

 

I joined this forum in the belief I'd be guided.

Not in the belief I'd end up needing a lawyer

- I can't afford one and would have just took the CCJ and stopped the months of anguish.

 

You have no idea how my health is, and the affect that this situation has added to it.

So - my final defence is simply that they have not sent originals?

[isbo]

Supplementary Witness Statement:

In relation to the claimant's paragraph 3.

- I have no recollection of entering into an agreement with Barclays in 2008,

indeed if there was any agreement my recollection is that it was in 2006,

and whilst I have no existing documents available to you support this,

the Claimant is put to strict proof to evidence the commencement date.

 

 

The date being significant because the powers of the court to enforce improperly executed regulated agreements changed in April 2007.

 

Furthermore I challenge the reconstituted agreement as it is clearly in breach of s.61 of the Consumer Credit Act 1974 thus

- signing of the agreement, as it does not contain a signature for the debtor and creditor.

Therefore, it is improperly executed.

 

 

Section 65 of the Consumer Credit Act

"An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only."

but the Court's discretion to determine the enforceability of pre-April 2007 agreements is removed by virtue of s.127(3).

 

Furthermore 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 recon (which is effectively an improperly executed agreement) could only be enforced at the discretion of the Court, but this discretion only exists for post-April 2007 agreements.

 

 

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.

 

- The Default Notice isn't included in your upload - do you have it? No

- The Notice of Assignment - not included in your upload - do you have it? No

- They've added statutory interest to the defaulted account amount - challenge this too, as it can only be awarded at the discretion of the court.....but I'd certainly be knocking this off should you try to negotiate a settlement.

Thanks, point noted.

[shamrocker]

So they've referenced exhibits within their WS but not included them?? i.e. DN & NOA.

[isbo]

NOA was received. No DN.

[shamrocker]

NOA was received. No DN.

 

In para. 6 they refer to exhibit 'SLW3'. Are you sure this wasn't included in their witness statement?

 

Edit - you haven't uploaded the recon agreement either, as noted earlier. Where is all this stuff? It needs to be up here if we're to assist you. Every page of it.

[Ford]

jackreacher I'm grateful for your response but I'm afraid I must take issue with your final line.

 

I have spent ages on this claim and that remark is uncalled for and below the belt.

 

I joined this forum in the belief I'd be guided.

Not in the belief I'd end up needing a lawyer

- I can't afford one and would have just took the CCJ and stopped the months of anguish.

 

You have no idea how my health is, and the affect that this situation has added to it.

So - my final defence is simply that they have not sent originals?

 

you have been guided imo.

partic in re of yr circumstances.

 

i have posted repeatedly about that to you, to have a think about everything.

you said you wanted to continue.

 

generally, the hope is that a claimant will discontinue a claim as it progresses,

depending on the circs.

 

so, generally,

its defend to begin with if there seems a chance, and then take it from there.

at the same time, all info needs to be posted by the defendant.

 

they still might discontinue in yr case, who knows. but, maybe unlikely given that they attended the last hearing.

 

unless you can put some doubts in their claim prior (hence shams/jacks posts).

otherwise, you can still enter into an arrangement to pay via a tomlin/consent order. see, no ccj!

 

do consult a lawyer, if that is an option. maybe that will decide for you either way.

whatever you decide, good luck.

[isbo]

You have guided me Ford, and as before I remain very grateful. Very.

 

However all I've learnt so far is that it's been a staying exercise, nothing else.

Fair enough if that's all that was ever likely, but I'd sooner I'd known that way back, rather than 7 months on.

 

I spoke to them today and they are not willing to settle anything less than in full.

So back to square one. I am extremely massively gigantically peeved to say the very, very least.

 

And just for accuracy

- I did post that they had sent copies and recons of the document.

I said then that they were standard pages, photocopied.

 

There's nothing amazing to be gleaned from them other than the fact that they're copies, and not originals.

 

What a waste of time, money and no small amount of stress this has caused.

[Ford]

it can be more than a 'staying exercise'. depends on the OP and the circs.

 

if you hadnt posted, you prob wld have a ccj (as you said you prefer to let dogs lie).

now, you can avoid a ccj either by way of an arrangement, or poss defending. your decision, as i keep posting to you.

 

but you have yet to reply about it.

if they had discontinued, then you wld have been more than happy!

 

if you dont want to risk a poss ccj (not saying that you will get one, but you know what i mean), and dont want to try defend, then take an agreement to pay. and get on with things.

[jackreacher]

And just for accuracy - I did post that they had sent copies and recons of the document. I said then that they were standard pages, photocopied. There's nothing amazing to be gleaned from them other than the fact that they're copies, and not originals. What a waste of time, money and no small amount of stress this has caused.

 

How do you know whats to be gleaned from them ..where are they. why haven't you posted them?

 

You said you had posted everything you have received.. now you say you haven't?

 

this is the stuff we can build you a defence upon without it we are pretty stumped.

[Ford]

I am extremely massively gigantically peeved to say the very, very least.

why

 

if you hadnt of challenged, then you prob wld have a ccj.

 

if they had discontinued, then you wld be quite happy.

 

you can still avoid the poss of a ccj if you want to enter into a payment arrangement.

no different then doing so prior.

 

you asked for help re the hearing you cldnt, for whatever reason, attend, and that was forthcoming

(it was asked whether you wanted an adjournment or not).

otherwise, why didnt you let it be and see what happened.

anyway, am out. good luck.

[dx100uk]

you should not be ringing them ever..

just adds to the threats and thoughts of you are going to lose

as they'll say anything on the phone to unsettle you

that they'd never put in a letter.

 

 

shows you are desperate too and worried.

gives them the upperhand.

[shamrocker]

And just for accuracy - I did post that they had sent copies and recons of the document. I said then that they were standard pages, photocopied. There's nothing amazing to be gleaned from them other than the fact that they're copies, and not originals. What a waste of time, money and no small amount of stress this has caused.

 

If you're on here to be guided, then why aren't you listening to the advice and requests, and instead deciding whether certain documents are important or not? It's important to post up every single detail. Forget the fact they are not originals - they are 'evidence' and you need to respond and discredit that evidence.

 

Ok, so you've contacted them to ask if they'll give you a reduction. Why should they? Other than send a rent-a-sol to court for a few hours, they're on a winner at this stage, as you have not challenged them in any way. You need to hit them with the supplemental witness statement to make them take any notice of you, and then follow up with a well worded Without Prejudice email offering a full and final settlement (if settlement is the way you want to play it). Words to the effect that, having considered all aspects of the case, you feel that a Full & Final Settlement of £x,xxx.xx would represent a fair outcome for both parties. If accepted by the Claimant, you would be willing to settle by way of a Tomlin Order, to consist of xx monthly payments of £xx. Costs for the drawing up of the order to be borne by the Claimant.

 

That's all I have to contribute here, I feel. I sympathise with your health situation, but you need to realise that none of us put you in this position, but we are trying to help you get out of it. We're all busy with lives of our own, but we come on here anyway to help others out, as we were helped when we had similar issues. We can't do the work for you though - you have to read and read and try to understand the process, so the advice given will make more sense then. In fact, I'm probably guilty of spoon-feeding people too much, but you do still need to be the driver, not the passenger.

 

Best of luck with whatever way you decide to see this though.

 

Sham

[dx100uk]

so if you wish email me the full agreement

and i'll put it up.

 

 

dx

[isbo]

If you're on here to be guided, then why aren't you listening to the advice and requests, and instead deciding whether certain documents are important or not? It's important to post up every single detail. Forget the fact they are not originals - they are 'evidence' and you need to respond and discredit that evidence.

 

Ok, so you've contacted them to ask if they'll give you a reduction. Why should they? Other than send a rent-a-sol to court for a few hours, they're on a winner at this stage, as you have not challenged them in any way. You need to hit them with the supplemental witness statement to make them take any notice of you, and then follow up with a well worded Without Prejudice email offering a full and final settlement (if settlement is the way you want to play it). Words to the effect that, having considered all aspects of the case, you feel that a Full & Final Settlement of £x,xxx.xx would represent a fair outcome for both parties. If accepted by the Claimant, you would be willing to settle by way of a Tomlin Order, to consist of xx monthly payments of £xx. Costs for the drawing up of the order to be borne by the Claimant.

 

That's all I have to contribute here, I feel. I sympathise with your health situation, but you need to realise that none of us put you in this position, but we are trying to help you get out of it. We're all busy with lives of our own, but we come on here anyway to help others out, as we were helped when we had similar issues. We can't do the work for you though - you have to read and read and try to understand the process, so the advice given will make more sense then. In fact, I'm probably guilty of spoon-feeding people too much, but you do still need to be the driver, not the passenger.

 

Best of luck with whatever way you decide to see this though.

 

Sham

Wait a bit. You see this is why I get confused.

People on here have told me that at no times should I make the claimant's aware of what I'm going to be saying, yet you're advocating that I need to be filing the Witness Statement with them.

 

I'm now going to again go through every single page I've ever had and will send to dx, who's a legend as always.

 

then maybe try, without prejudice, settle prior then re a reduced amount!?

sounds corny, but have a real good think about everything. post back.

 

THIS is the advice that I followed.

 

Right, all missing pages now sent.

I think some of them have been lost in the many emails, so my sincere apologies, and my sincere apologies for getting so antagonised over this.

 

 

I do realise that you're all doing your best to help me and I am very grateful for each of yours time and troubles.

Maybe I came on here expecting a magic bullet, so to speak and was dashed to find there isn't one.

 

as far as I can tell I need to write the WS that I posted yesterday up and post it to the Court and the claimant.

I need to write to the claimant reminding them that they have been commanded to bring originals.

I need to file my doctors letter. Owt else?

[shamrocker]

Wait a bit. You see this is why I get confused. People on here have told me that at no times should I make the claimant's aware of what I'm going to be saying, yet you're advocating that I need to be filing the Witness Statement with them. I'm now going to again go through every single page I've ever had and will send to dx, who's a legend as always.

 

Who said that?

 

It's entirely up to you whether you take my advice or not.

You have not denied entering into an agreement with the original creditor.

You have not denied spending the monies made available to you though the agreement.

You have not raised any dispute with regards the agreement or account.

That's how the judge will view it.

 

 

The statements, default notice, notice of assignment and recon agreement will suffice in so far as proving beyond reasonable doubt that you are liable for the debt.

 

 

If you are going to challenge the enforceability of the agreement based on the evidence supplied then you need to do it now.

It's no use turning up in court and arguing the toss.

 

 

In any case, the purpose of the supplemental witness statement, as far as I'm concerned, is to prepare the ground for you to approach them in writing prior to the hearing with a F&F settlement offer what will be a nice reduction on the amount they're claiming.

[isbo]

Sham to save me copy and quoting, please just read back. It's been said.

 

No - and that has been clear from my posts from day one.

Have you read from the start or are you just picking a fight now?

That's the WHOLE point of coming on here.

 

 

now you're saying that I shouldn't be going to court and arguing the toss?

Hells bells let's at least get the same hymn sheet to sing from.

I thought that was the plan/advice to turn up and argue this is why it's not enforceable? No?