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

[isbo]

My reply was posted sham but has gone.

Read back - that is the advice I've been given.

 

 

So are you saying I should not attend the hearing, as that was the plan - to attend, present the case for the defence and see what the Judge said.

[shamrocker]

Should you not attend the hearing??

Well, I wouldn't be going to the hearing without first laying out my response to the Claimant's witness statement in the form of a supplemental witness statement of my own. That's just my view.

 

 

Ask others for their view too, but make sure you know those views are qualified.

I wouldn't regard myself as qualified, but I write from experience of getting my fingers burned, and a lot of reading up on here.

 

Yes, I've read the thread from the start, but I do not recall you being told not to disclose what you're planning to say in court. I am not disputing that this was said, but I would have doubts about the context.

 

I'm not picking a fight with anyone, just merely offering advice that I feel you need.

I've told you above how I believe the judge will view the claim as things stand.

It's up to you how you proceed.

 

 

Remember, your defence will be the basis of how the hearing is conducted.

Does your defence still stand up, in light of the evidence that has been presented by the Claimant?

[isbo]

Put simply sham: I have absolutely no idea whatsoever, that's why I'm here. No idea at all.

[dx100uk]

read what sham is saying properly, not you're interpretation isbo..

 

 

you cant go into court and start arguing over a NEW POINT that you have NOT ALREADY raised in your defence, WS or supplementary WS.

[Andyorch]

My two peneth worth isbo...I think you are over complicating this.....believe me you wont get chance to argue anything..lucky if your in the court 15 mins..the game here is to pursued the claimant to discontinue or at the least mediate and propose a mutually agreeable settlement.This is done by submitting a witness statement or supplemental witness statement....anything not done or covered prior to the actual hearing will be irrelevant in deciding your case....dont argue it on the day.

 

Andy

[jaycwl]

isbo think of all this like your building a house.

 

first off you have to get the plans drawn up (acknowledging and defending the debt)

You then build the foundations ( defence submitted and doc sent to prove your defence)

laying the bricks to build the walls (witness statement)

fitting the roof (supplementary witness statement)

interior decorating (going to court)

 

Now none of them stages can be done before the others have been done eg roof cant be fitted before the walls are built, cant do the interior unless the walls and roof are on. So what everyone is saying is you can't go to court on the day and argue the toss unless you have responded to there points first. eg you cant paint when there is no walls to paint.

Hope you are understanding what I'm getting at.

 

Now the final objective is to get a reduction, from £0 best case to whatever your happy with.

Now from their point of view its the opposite, at the min their ahead so they're not going to reduce at the min as its no benefit to them, same as you wouldn't of paid full if no docs had been submitted from them.

 

You didn't attend the first hearing

you've not responded to there witness statement,

in their mind you gonna crack like you are saying you are on here and pay the full amount.

 

you need to respond with some doubt to them that they might not get the full amount or maybe even lose the lot

(points jack and sham made prove the start date then recon no good and the rest).

Then make a offer or go to court.

the guys on here will advise best but they cant if you don't respond and don't tell them everything that's been sent and said.

 

Ive tried to explain it best I can and hope you understand

also that ive got everything right as I'm only new here like you lol.

 

 

now chin up, take a step back and read all the points in the thread again then respond to there ws and see what the guys say

 

Jay

Edited October 4, 2016 by dx100uk
there, their, they're sorted so it makes sence - dx

[isbo]

Thanks dx, Andy & jay. This is now making sense, and I am really grateful for your input. Tomorrow I shall send the Supplementary WS to the Court and the claimant. I'm ever so sorry, I totally misunderstood the advice given beforehand.

[shamrocker]

Thanks dx, Andy & jay. This is now making sense, and I am really grateful for your input. Tomorrow I shall send the Supplementary WS to the Court and the claimant. I'm ever so sorry, I totally misunderstood the advice given beforehand.

 

Post it up here first for feedback.

[isbo]

Cover letter:

Dear Sir/Madam,

 

Re: Claim Number: XXXXXX

 

Please find enclosed my supplementary witness statement regarding the above claim.

I only received the Claimants Witness Statement two days prior to the first, adjourned hearing.

I have sent this supplementary statement to the Claimant, aswell as the Court. Thank you for the adjournment.

 

Kind Regards,

 

 

 

isbo

[Ford]

Originally Posted by Ford

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.

i wasnt going to post again, but;

i meant if you are going to try and settle/negotiate, then do it in writing headed 'without prejudice' (not on the phone), with reference to what sham etc have said.

[isbo]

SUPPLEMENTARY WITNESS STATEMENT:

 

IN THE County Court of XXXXX CLAIM NO: XXXX

 

BETWEEN:

HOIST PORTFOLIO HOLDING 2 LTD Claimant

 

-and-

 

MR XX XX Defendant

 

SUPPLEMENTARY WITNESS STATEMENT OF MR XXX of ADDRESS.

 

I. Mr XX XXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1. In relation to the claimant's paragraph 3.

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

indeed 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 by complying with the Court’s request for original agreement and documents.

 

 

2. 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.

 

 

3. Section 65 of the Consumer Credit Act states that "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).

 

4. 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 reconstituted agreement (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.

5. As per CPR 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

6. On the alternative, as the Claimant alleges to be an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act.

 

7. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed

 

Dated on this day 4th October 2016

[isbo]

How's that sounding?

[isbo]

i wasnt going to post again, but;

i meant if you are going to try and settle/negotiate, then do it in writing headed 'without prejudice' (not on the phone), with reference to what sham etc have said.

Again, sorry for the misunderstanding. I did state 'without prejudice' on the phone, and made no admissions.

[martin2006]

Cant see anything about an original default notice in there isbo, if you are arguing that the agreement is pre april 07 then the default notice must also be a true copy and not a recon.

[dx100uk]

the missing docs

[isbo]

Thanks dx. I did send you 11 though?

[isbo]

Cant see anything about an original default notice in there isbo, if you are arguing that the agreement is pre april 07 then the default notice must also be a true copy and not a recon.

OK thanks Martin. How best to phrase that into the SWS?

[dx100uk]

nope 1 email 11:46 today 5 attachments

[isbo]

And that, then, explains my puzzlement at the other missing pages. There were 11 sent dx.

 

I've been sending them off my phone, would that explain it?

 

All 11 were on 1 email dx.

[jackreacher]

Part of the default notice is missing unless that is it from Mercers.. in which case looks like a fail.

 

Is there still no original signed agreement?

 

 

WS is looking good put them to strict proof a Compliant Default Notice and Termination notice were sent.. find a thread for a quick read.

[isbo]

There is no signed agreement. I've never had any originals forthcoming from them.

[shamrocker]

What about statements of account? Are they included in the first upload? We could really do with the whole thing being tidied up and uploaded complete and in order.

[jackreacher]

Ok ..so you know where you are now. Clearly it is easier to argue in court how the missing ordered original documents prejudices your case, I am glad you are going strong on the disputed start date..the reason being the judge should make them get the ordered originals. Have a read through the first Carey and keep looking for ' proof purpose'.. the judge repeatedly say the s78 information is not the proof purpose! and if you make a positive assertion disputing the agreement the creditor will have to find the original..

 

However get the DN and Termination notice into your WS . you are doing well!

[isbo]

What about statements of account? Are they included in the first upload? We could really do with the whole thing being tidied up and uploaded complete and in order.

I've sent the lot twice now sham. For some reason not all are being received.

[isbo]

Insert this, then jack?

4. Both the claimant’s Default Notice and Termination Notice are not, as requested by the Court and myself, originals.